Smt. Anusha Kulkarni vs Umesh Kulkarni

N.K. Patil, J.—The petitioner in the instant petition prays to withdraw and transfer M.C. No. 35 of 2005 on the file of the Civil Judge (Senior Division), Chikmagalur to the Court of the Civil Judge (Senior Division) at Dharwad in the interest of justice and equity.

The only grievance made out by petitioner in this petition is that, petitioner being a lady is not in a position to attend the Court as and when M.C. No. 35 of 2005 is posted for consideration before the learned Civil Judge (Senior Division), Chikmagalur, on the ground that, she is staying with her parents at Dharwad and the distance between Chikmagalur and Dharwad is 300 km. and she cannot travel alone without the assistance of any male member and whereas, the respondent is concerned, he can appear before the Court if the matter is transferred to Dharwad and no hardship would be caused to him. Further, it is the case of the petitioner that, she has filed an application before the Court below in M.C. No. 35 of 2005 u/s 24 of the Hindu Marriage Act, 1955, seeking a direction against the respondent herein to pay maintenance at the rate of Rs. 6,500/- per month and Rs. 2,500/- towards litigation expenses. The Court below after hearing both sides has allowed the said application and directed the respondent herein to pay the monthly maintenance at the rate of Rs. 2,500/- to the petitioner herein and also directed to pay litigation expenses at Rs. 2,500/-, by its order dated 6th February, 2006. The respondent herein has paid Rs. 2,500/- towards litigation expenses and he has not paid single pai towards maintenance from the date of allowing the said application till as on date. Having regard to these backgrounds and due to her personal difficulty, petitioner was constrained to file this civil petition.

I have heard learned Counsel appearing for petitioner and learned Counsel appearing for respondent.

After careful perusal of the materials available on record, what it emerges is that, in fact, the Court below has directed the respondent herein to pay the monthly maintenance at the rate of Rs. 2,500/- per month to the petitioner and also directed to litigation expenses of Rs. 2,500/-, So far as the litigation expenses of Rs. 2,500/- awarded by the Court below is concerned, the same has been duly paid by the respondent and the same has been acknowledged by learned Counsel appearing for petitioner. But respondent has not deposited any amount towards maintenance from 6th February, 2006 till as on date. Therefore, if appropriate direction is issued to the respondent herein to deposit a sum of Rs. 30,000/- towards monthly maintenance to the petitioner from the date of the order passed by the Court below on an application filed by petitioner herein in M.C. No. 35 of 2005 i.e., 6th February, 2006, till the order to be passed by the Court below on an application filed by respondent herein for modification of the said order which is pending adjudication, it would meet the ends of justice. Therefore, the respondent herein is directed to pay Rs. 30,000/- (Rupees Thirty thousand only) by way of demand draft, within two weeks from today to the petitioner''s through courier or registered post with acknowledgement due, subject to the decision to be taken by Court below on the application filed by respondent for modification of the order dated 6th February, 2006 on I.A. No. IV in M.C. No. 35 of 2005.

So far as the prayer sought by petitioner for in this petition i.e., for transferring M.C. No. 35 of 2005 is concerned, petitioner has not made out any good grounds to consider her prayer. When this matter has been heard at considerable length of time on 9-4-2008, this Court had directed the respondent''s Counsel to produce certificates to show that, his two sons are studying in the school at Chikmagalur. Today, when the matter is taken up for consideration, learned Counsel appearing for respondent has filed a memo along with the Progress Reports and the certificates of the two children of the respondent. From the perusal of the same, it can be seen that, Master Akash Umeshrao Kulkarni studying in the II Standard has been promoted to III Standard. The same has been issued by the class teacher and certified by the Headmaster of St. Joseph''s English Higher Primary School, Chikmagalur for the academic year 2007-08 and one Master Nithesh Kulkarni who was studying in L.KG. has been promoted to U.K.G. and the same has been issued by the Principal, Christ the King Education Society (R), Chikmagalur for the academic year 2007-08 and to that effect, certificates have also been issued by the Principals of the respective institutions. Therefore, he submitted that the paramount consideration of the respondent is the welfare of his sons. Further, learned Counsel appearing for respondent on an instruction from the respondent who is present before the Court submitted that, respondent is ready and willing to pay the travelling and other incidental charges at the rate of Rs. 1,200/- expenses as and when petitioner appears before the Court below i.e., on the effective date of hearing. In view of the above facts and circumstances of the case, I do not find any justification or good grounds as such made out by learned Counsel appearing for petitioner to entertain the prayer sought for by petitioner in this petition. Therefore, the petition filed by petitioner is liable to be rejected as devoid of merits.

Learned Counsel appearing for petitioner has placed reliance on the judgment of this Court in Smt. Swarna Gouri Vs. Sri Vinayak Pujar, and Anr. case in Reena Mehra Vs. Rohit Rai Mehra and Another, and submitted that, in view of the well-settled law laid down by this Court and Apex Court in the aforesaid judgments, the prayer sought for by petitioner is just and reasonable and the instant civil petition may be allowed. There is no dispute regarding the well-settled law laid down by the Apex Court and this Court in the aforesaid judgments. The facts and circumstances of the aforesaid cases are entirely different from the facts and circumstances of the case in hand. Therefore, the aforesaid reliance placed by the learned Counsel appearing for petitioner is not applicable to the facts and circumstances of the instant case to prove the ground urged by petitioner in this petition for the reasons stated in the preceding paragraphs. In the instant case admittedly, it is not in dispute that, both the sons who are aged about 8 and 5 years are staying with respondent along with his parents and petitioner being the mother it is duty cast on her to consider the welfare and future of her sons. But unfortunately, due to misunderstanding there is a dispute between the petitioner and respondent. Taking all these factors into consideration, I am of the considered view that, the prayer sought for by petitioner in this petition cannot be considered. Nor I find any good grounds as such made out by the petitioner to entertain this civil petition. Hence, the instant civil petition is liable to be dismissed as devoid of merits. Ordered accordingly.

Further, learned Civil Judge (Senior Division), Chikmagalur is directed to dispose of the application filed by respondent u/s 151 of the Civil Procedure Code, 1908 for modification of the order dated 6th February, 2006 passed on LA. No. IV in M.C. No. 35 of 2005, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a copy of this order.