The High Court · 2025

Order

This T'i anslt r Civil Miscellaneous petition is filed seekir.rg to transl'er FCOI'.No 327 of 2024 on the file of the Family Crurt- cum-Vl Additiona District Judge, Prashant Nagar, Ranga R:ddy District at Kukatpally to the Family Court, Kiammam.

2. Heald Sri C.V.Mohan Reddy, learned senior counsel appearing fcrr N{s. Nafisa, leamed counsel on recor.d fbr the petitioner and Sri C.Nageshwara Rao, learned counsel appei Lring for Sri K.I{.Prachakar, learned counsel on record lor the respondent.

3. The brie f h:ts of the case, shom-off unnecessary delails, required for adtudlrration of this Tr.C.M.p., are that the petitionr:r in her affidavit fi[ed ir.r support of the TrCMp, averred that she and respondent arr: r,,' if'e and husband; that their marriage was solemnized on 021.115.2023 at Khammam as per Hindu rites and customs; that afier lnarriage ceremonies, she and respondent le lt to Dubai 15.05.2Cr23. \vhe-re respondent abodes and is w.orkingl that \ on 20.05.202-1. she ,:ame back to Hyderabad and later. sl.re has been I .\, 2 LNA, J TtCMP.No.49E of 2024 residing at Khammam by performing office duties on 'Work from Home' mode, however, whenever there is necessity, she used to travel to Hyderabad. It is further averred that she and the respondent did not reside together at Hyderabail, and in fact, they spent together only 48 hours in Hyderabad; that in June, 2023, she stayed for some time at her mother-in-law's house at Hyderabad to take care of her mother-in-law when she underwent a surgery. It is further avened that as differences arose between her and respondent, the latter filed FCOP.No.327 of 2024 seeking dissolution of marriage before the Family Cour.t at Prasanth Nagar, Ranga Reddy District at Kukatpally

3.1. The petitioner further averred she has been residing with her parents at Khammam and as she is suffering rvith motion sickness and further, given the circumstances of threat to her tife, it is difficult for her to travel all alone the distance of 196 kms from Khammam to Hyderabad to appear before the Coufi at Hyderabad on each and every date of hearing of the FCOP, which will have effect on her health and therefore, prayed this Court to grant the relief sought for. -rfr LNA, J TrCnIP.No.)98 oI2024 3

4. The respondent filed counter through his General Power of Attorney Flotde.-his molher inter alia denyingthe allegation:; made by petitioner irr thc alfidavit and averred that respondert and petitioner la:;t)y resided at Hyderabad and as such, the FC()P was filed in the: Iramily Court, Ranga Reddy District at Kukatpat y' lt is further avetrerl that after marriage, petitioner and respondent stayed at the housc r>1- respondent at Hyderabad for two days and once respondent lelt 1o Dubai, petitioner went back to her aparllnent at Gachibowli, It1'rlerabad; that on repeated requests, in the nr'lnth of NovembeL, -2023. petitioner went to Dubai, howevet', retumod back to lndia, agrrinst the wishes of respondent, within a month on the pretext o[ gelting a job at Hyderabad and thereafter abandoned respondent. 4 .1 . It is lurtL er averred that respondent is a resident oi' Dubai and based on nature of his job, he cannot take leave frequerrtly and if the FCOP Ls tried in the Court at Hyderabad, he can Cirectly travel to llvdr:r'iLbad fiom Dubai and can go back to Dubai on the same day ancl rn the other hand, if the FCOP is transfc:rred to Khamrnam, hr: ras to fly to Hyderabad from Dubai and ag,ain has to travel dista.n;e of 196 kms from Hyderabad to Khamrnam to \ ./'/ I 4 LNA, J TICMP.No.l98 of 2021 attend the Court proceedings. It is also averred that there is a tife threat to respondent at Khammam as petitioner had already warned him so.

4.2. It is funher averred that prior to marrihge, petitioner had been living at Hyderabad and even as of now, petitioner is working and residing at Hyderabad. Respondent denied that petitioner is residing with her parents at Khammam and averred that in fact,, petitioner is residing in a rented flat at Hyderabad and created a ground that she is residing with her parents at Khammam only for filing the present Tr.C.M.P. By contending thus, respondent prayed to dismiss the Tr.C.M.P.

5. The petitioner filed a reply to the counter filed by the respondent, denying the averments made in the counter. She stated that mere fact of receiving notice at Hyderabad by her does not form basis to conclude that she is residing at Hyderabad; that she has chosen a remote job which does not require her physical presence so as to enable her to work on'Work from Home' mode; that she does not have any permanent residential address at Hyderabad and she travels to Hyderabad only when her presence is required at the Office at Hyderabad and during that time she stays .// LNA, J TtMP.No.:98 oI2024 5 at her relar.ive; piace, which is the postal address to u'hich notices were sent 1o hr:r.

5.1. She spe::fically denied that there is threat to responiJent in case he trarrels to Khammam and the same is created only to circumvent the liscomfort that will be caused to him in r)aSe of travel to Khan:rntam and hence, the same cannot be constru:d as a valid grounc[.

6. Learned settior counsel appearing for the petitioner specificalll' cotr.ended the petitioner and respondent did lLot live together for anl' considerable time at Hyderabad except 1br few hours or one lr two days; that the petitioner continued to stay at Khammam with her parents, except for travelling to l{yderabad in case of cxigt:n:ies in office. Therefore, a casual or place of temporar) stay of petitioner cannot be construed or considered that both havc resided together at Hyderabad and the same does not constitute 'r'esidence' within the meaning of clause-(iii) of Section 19 of the llindu Marriage Act and further, does not sat'sfu the requiremenr. o[ 'last resided together' under the said Act tc, invoke the jurisdi,:tiorL of Family Court, Ranga Reddy District at Kukapta[lv, H 1,tlerabad. \ \ ,"'' 6 LNA, J T.CMP-No-l98 oI2021

6.1. Leamed senior counsel for petitioner by referring to Section 19 of Hindu Marriage Act, contended that that FCOp has been filed at Kukatpally, Ranga Reddy District, under Section 19(iii) of the Hindu Marriage Act, by falsely'claiming that the petitioner and respondent resided together at Hydr:rabad and in fact, they never resided together in Hyderabad e;<cept for few hours before the respondent left to Dubai. Thereforr:, the Court at Kukatpally, Hyderabad, has no jurisdiction to try the FCOp.

7. In support of his contentions, learned senior counsel relied upon judgment of the Hon'ble Supreme Court in Jeewanti pandey Vs. Kishan Chandra Pantleyt, wherein the Hon'ble Siupreme Court had an occasion to examine the aspect of residence under Section 19 of the Hindu Marriage Act and it is observed as hereunder:- "ln order to give jurisdiction on the ground of 'residence' something more than a temporory stay is required. Il must be more or less of a permanent character, and of such a nature that the Court ,t.n which the respondent is sued, is his natural forum. The word 'resides' is by no means free from all ambtguity and is copable of a variety of meanings according to the circumstances to which it is made applicable and the context in which it is found. It is capable of being ' (19E*) 4 scc s17 Li\A, J T{inP.i\o 198 of 1024 1 unclerstood in its ordinary sense of having one's ott'r' rlu,et'ling perrnanently, as well as in its extended sense In its o,,linary .sense "residence" is more or less of ir perntanelt character. The expression "resides" t €ahs mdk'? ctt, abode for a considerable time; io dweil pernane ll' or for a length of time; to have a settlerl abotle fo.' a time. It is the place where a person has fixe'i home or nbode. In ll/ebsler's Dictionary, "to reside" has been rieJined as meaning "to dwell permanenlly or.lb' ar,5, len,qth of time", and words like "dwelling place" o" "aLtodt" are held to be synonymous. Where lhere is sttc't fit:ed horne or such abode ot one place lhe person cannrtt be said to reside al any other ploce where he had gon: on a r:usual or temporary visit, e.g. for health or bu.siness or for a change. If a person lives with his vtilz ancl chi,dren, in an established home, his legal an) actt,al pitrce of resiclence is lhe same. If a person has n:t establi,sl.ecl honte ond is compeLled to live in hoteL' boa"dirtti h.ouses are houses oJ others, his actual an:l plrysic(il lnbitation is the place where he acluaLlt' or perr:on& L)r resides. " 1 .1. Learned t;enior counsel also relied upon the judgmerlls of the Hon'ble Suprerne Court in N.C,V.Aishwarya Vs. A.S.Suravana Ksrlhik Shs2 and Bhagwan Dass and d.nother Vs. Ksmol Abrol 2 2ozz scc rlnline sc 1199 I i l i I 8 LNA, J TrCMP.No.498 of 2024 and others3 ln support of his contention that the wife's convenience must be looked at while considering transfer of case and prayed to allow this Tr.C.M.P

8. Learned senior counsel appearing for .the rel;pon dent inter alia opposed the submissions made by learned senior counsel appearing for the petitioner and contended that the petitioner, prior to marriage and even now, is residing at Hyderabad and therefore, the said ground pleaded by the petitioner for transfer of FCOP is trivial and futile.

8.1. Learned senior counsel further contended that admittedly, the petitioner's office is at Hyderabad and she treing a Team Leader would be frequently travelling to Hyderabad in connection with her officiat duties, therefore the averment of the petitioner that she has motion sickness and as such, her travel from Khammam to Hyderabad will have effect on her health are all false. By contending thus, he prayed to dismiss the Tr.CMP.

9. This Courl gave its eamest consideration to the rival submissions made by leamed senior counsel appearing for both the pates. Perused the entire material available on record. \ 31zoos; tt scc es .tz 9 LNA, J T|CMP.\''.498 oI2021

10. Penrsal rf record discloses that marriage of the petiiioner and responrlent took place at Khammam and both have resided together at Kbe.mmam only for three days and thereafter'. both came dowrt to Ilyderabad and resided together at HyderahrLd for couple ol days before the respondent left to Dubai, as adrrritted by the respondt:nt in the counter. However, the petitioner l;tated that they never resided together at Hyderabad and therefor:, the requiremt:nt of Section 19(iii) ol the Hindu Marriage Aci is not satisfied. 1 1. I.urther', it is to be noted that the responde nt is represented by his mother as General Power of Attorney, l ence, the contention ,rutfbrth by the respondent that transler o f' ];COP from Kukatpal.y to Khammam will cause inconvenienci: and hardship to hirr is untenable. Since the respondent is represented by GPA holder, except for recording his evidence, his pt'csence before the Colrrt is not necessary on each and every d:lte of adjoumment of the case.

12. 'lhe llon'ble Supreme Court in NCV Aishwar.y:t Vs. A.S.Saravana l{arthik Shaa held as follows: ' 2022 SCGOnline !;C 1199 10 LNA, J T|CMP.No.498 ol202a " The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of itutice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, lheir standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio- economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer. "

13. The principle of law laid down by the Hon'ble Supreme Courl in N.C.V.Aishwarya's case (3'd cited supra), has been reiterated by the High Court of Bombay in Devika Dhirai Patil Nee Devika Jayprakash Buttepatil v. Dhirai Sunil Patil5, and observed as under:- "In a country like India, important decisions such as marriage, divorce are still taken with the guidance and blessings of elders in the family For a lady to travel alone for the proceedings to a Court where the fate of her marriage is going '-4&be decided without any family member would t (2023 SCC OnLine Bom 1926) l1 LI\A, J T.CMP.Nt' 198 of 2021 de-finitely be a matter of concern and cause not only physical inconvenience but also emotionol dnd p :t, cfu o 16 gical i nco nv e nie nc e. "

14. Furth,:r, tlre High Court ol Bombay in Priyanka R.ahul Patil v. Rohul Ravindra Pafif followed the principie laid dorvn in N.C.V..4ish't,trya's case (3'd cited supra) and Devika Dhiraj Patil Nee Deviks Jayprakash Bullepatil's case (4th cited supra), and held as lollc ws:- " 7-lLe underlying principle governing the proceedings unaler .\rtion 21 of the CPC, is that convenience o/' llt v'ije is to be preferred over lhe convenience of th.c' hust and. "

15. Thus, t.here are catena of decisions of the [Ion'ble Supremc C ourt and other High Courls to the eflect that in matrimonial matters/disputes, while considering the applicltion for transfer of lhe proceedings from one Courl to another C our1, the Courls rnust give preference to the convenience of the wil'e over the conven'ence of the husband.

16. In the case on hand, dehors the rival contentions purlorth by

1. I \ leamed senior c,runsel appearing_fo.I both the pafties as regi,.rds the aspect of the pet itioner and respondent last resided together, in the 6 IZOZ: SCC OnLine tlom 1982) \ \ l2 LNA, J T|CMP.No.498 of2024 light of the underlying principle enunciated by the Hon,ble Supreme Courl and various other High Courts in the aforesaid judgments that the convenience of the petitioner/wife has to be given priority/preference over the convenience of the respondenL/husband, this TrCMP deserves to be allowed.

17. Accordingly, this Tr.C.M.P. is allowed and FCOp.No.327 of 2024 on the file of the Family Courl-cum-Vl Additional District Judge, Prashant Nagar, Ranga Reddy Disrrict at Kukatpatly is transfemed to the Family Court, Khammam, for disposal in accordance with law.

18. The Family Court-cum-Vl Additional Disrrict Judge, Prashant Nagar, Ranga Reddy Dislict at Kukatpatly, shall transmit the entirc original record in FCOP.No.327of 2024, duly indexed, to the Family Court, Khammam, preferably within a period of one month from the date of receipt of a copy of this order.

19. Pending miscellaneous applications, if any, shall stand i closed. There shall be no order as to costs / ,TRUE COPY// SD/. N ,S HARI DEPUTY REGI SECTION O FICER I One Fair Copy to the Hon'ble Sri Justice Laxmi Narayana Alishetty (For His LordshiPs kind Perusal) To, 1 Family Court Vl Additional District Judge, Prashant Nagar' Ranga Reddy District at Ku katp allv i ,/ I

2. The Court of Judge Famlly Court, Khammam 3. ll LRCopies 4. The Undei- Ser;retary. Union of lndia Ministry of Law, Justice and Company Affairs. Nevr De-- hi Telangana, Hrcrh Court Buildings at Hyderabad.

5. The Secret;rry. ;\dvocates Assocration Library. Hrgh Coud for t:te State of 6 One CC t: MS. NAFISA, Advocate [OPUC] 7 One CC tr iSRl l( R PRABHAKAR, Advocate IOPUC] B. Two CD Copies ADK,'PSL- v-1,' HIGH COURT DATED:2610312025 \ \ ORDER TRCMP.No.49tt of 2024 ALLOWING TIlE TRCMP WITHOUT COSiTS x"<r, ,\' t oil IHE 4 o () * 0e AP fl ii:, (i1r .: ItlHF4 n +