SATHISH K v. SMT SHRUTHI B S

Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA …PETITIONER (BY SRI. NAGESH M., ADVOCATE) …RESPONDENT - 2 - NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023 THIS CIVIL PETITION IS FILED UNDER SEC.24 OF CPC, TO TRANSFER THE PETITION IN M.C.NO.315/2023 ON THE FILE OF THE I ADDL. PRL. JUDGE, FAMILY COURT AT MANGALURU AS PER ANNEXURE-E TO FAMILY COURT AT BENGALURU TO TRY AND DISPOSE ALONG WITH M.C.NO.3720/2023 ON THE FILE OF THE VI ADDL. FAMILY COURT AT BENGALURU AS PER ANNEXURE-C DISPOSE OF THE SAME IN ACCORDANCE WITH LAW, IN THE INTEREST OF JUSTICE AND EQUITY. IN CP No.521/2023 BETWEEN:

1. SMT SHRUTHI B S W/O SATHISH K D/O SUDHARSHAN BABU B R AGED ABOUT 31 YEARS, R/AT DOOR NO. 24/25 GROUND FLOOR, NAGAKANNIKA TEMPLE ROAD, 3RD CROSS, DEREBAIL KONCHADY, MANGALURU-575008. (BY SRI. M NAGESH., ADVOCATE) AND:

1. SRI SATHISH K S/O NIRANJAN K N AGED ABOUT 31 YEARS, R/O NO. 251, SAI SHAKTHI ENCLAVE, RAJARAJESHWARI NAGAR, BENGALURU-560098. (BY SRI. PRASANNA D.P., ADVOCATE) …PETITIONER …RESPONDENT THIS CIVIL PETITION IS FILED UNDER SEC.24 OF CPC, PRAYING TO WITHDRAW THE PROCEEDINGS PENDING ON THE FILE OF VI ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BENGALURU IN M.C. No.3720/2023 AND TO TRANSFER THE SAME TO THE 1ST ADDL. PRINCIPAL JUDGE, FAMILY COURT AT MANGALURU AND TO DISPOSE OF THE SAME IN ACCORDANCE WITH LAW, IN THE INTEREST OF JUSTICE AND EQUITY. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023 - 3 - ORDER CP No.378/2023 is field by the husband to transfer M.C. No.315/2023 which has been filed by the wife under Section 13(1) (i-a) of the Hindu Marriage Act1 for divorce which is pending before the I Addl. Prl. Judge, Family Court, Mangaluru. C.P. No.521/2023 is filed by the wife seeking for transfer of M.C. No.3720/2023 filed by the husband under Section 13(1)(i- a) of the Act for divorce which is pending before the VI Addl. Principal Judge, Family Court, Bengaluru. Since the parties in both the petitions are same, both the petitions are taken up together for consideration.

2. For the sake of convenience, the parties herein are referred to as per their relationship.

3. The essential undisputed fact situation is that the marriage between the parties was solemnized on 31.08.2020, consequent to which, the parties have resided together for sometime. However, due to various reasons, the parties have residing separately. The husband filed M.C. No.3720/2023 on 15.06.2023 which is pending before the VI 1 Hereinafter referred to as the ‘Act’ - 4 - NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023 Addl. Principal Judge, Family Court, Bengaluru. The wife filed M.C. No.315/2013 on 07.07.2023 which is pending before the I Addl. Prl. Judge, Family Court, Mangaluru. The wife has also filed Crl.Misc. No.107/2023 on 20.10.2023 under Sections 12, 18(2)(b)(3), 20(1)a, b, c d & 20(2)(3) of the Protection of Women’s from Domestic Violence Act, 2005 which is pending before the III Addl. JMFC., Mangaluru.

4. Learned counsel for the husband seeking for transfer of M.C. No.315/2023 to Bengaluru submits that in the legal notice dated 30.03.2023 issued by the wife to the husband, the address of the wife is mentioned as Bengaluru. He further submits that the wife is a permanent resident of Bengaluru and only due to her employment which is a transferable job she is currently residing at Mangaluru. He further submits that despite the husband, in response to the legal notice dated 30.03.2023, having stated that the husband is a agreeable either to amicably join the wife or for a divorce by mutual consent, only to harass the husband, the wife has initiated various legal proceedings at Mangaluru after the husband has initiated M.C. No.3720/2023 at Bengaluru. Hence, he seeks for allowing the petition filed by the husband - 5 - NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023 and dismissing the petition filed by the wife. In support of his contentions he further relies on the judgment of the Hon’ble Surpeme Court in the case of Delma Lubna Coelho Vs. Edmod Clint Fernandes2

5. Per contra, learned counsel for the wife submits that the wife being gainfully employed at Mangaluru, the proceedings initiated by the husband are required to be transferred to Mangaluru. Hence he seeks for allowing the petition filed by the wife and dismissing the petition filed by the husband.

6. The submissions of the learned counsel for the parties have been considered and the material on record has been perused. The question that arises for consideration is, ‘whether the petition initiated by the wife and husband respectively are required to be transferred to one Court. If so, to which Court’?

7. The relationship of the parties and pendency of legal proceedings are undisputed. 2 Hon’ble Supreme Court, Transfer Petition (C) No.1475/2021 - 6 - NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023

8. It is forthcoming that the husband initially instituted M.C. No.3720/2023 on 15.06.2023 at Bangaluru. Subsequently, the wife has initiated the legal proceedings at Mangaluru as noticed above. It is also relevant to note that the residence of the wife in the legal notice dated 30.03.2023 (Annexure-A in C.P. No.378/2023) is shown as Bengaluru and there is no mention of Mangaluru address despite the fact that the wife is said to have commenced her employment at Mangaluru in the year 2021. It is further relevant to note that in M.C. No.315/2023 instituted by the wife at Mangaluru, the address of the wife is shown as at Bengaluru and it is mentioned that she was presently residing at the address at Mangaluru. It is also forthcoming in the petition in Crl.Misc. No.107/2023 that the wife is shown as residing at Bengaluru and only present address is shown at Mangaluru address. It is further contended by the learned counsel for husband that the job of the wife is a transferable one.

9. Although the Hon’ble Supreme Court in the case of N.C.V. AISHWARYA VS A.S.SARAVANA KARTHIK SHA3 has held that while considering cases for transfer of 3 AIR ONLINE 2022 SC 1268 - 7 - NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023 matrimonial proceedings, the convenience of wife will have to be given precedence to, it is relevant to notice that the aspect of convenience of the parties is required to be appreciated having regard to the factual matrix in each case. It is also relevant to notice the judgment of the Hon’ble Supreme Court in the case of Delma Lubna Coelho4, which is relied upon by the learned counsel for the husband wherein the Hon’ble Supreme Court considering the mutual rights of the parties has held that the wife has not made out any case for transfer of proceedings.

10. Having regard to the aforementioned, it is clear that the wife has failed to make out any ground seeking for transfer of M.C. No.3720/2023. On the other hand, the husband has made out a case for transfer of M.C. No.315/2023 to Bengaluru. Hence the question framed for consideration is answered accordingly.

11. In view of the aforementioned, the following ORDER i) C.P. No.378/2023 is allowed. ii) C.P. No.521/2023 is dismissed. 4 Hon’ble Supreme Court, Transfer Petition (C) No.1475/2021 - 8 - NC: 2024:KHC:4281 CP No. 378 of 2023 C/W CP No. 521 of 2023 iii) M.C. No.315/2023 pending on the file of I Addl. Prl. Judge, Family Court, Mangaluru shall stand transferred to the Court of VI Addl. Principal Judge, Family Court, Bengaluru to be tried along with M.C. No.3720/2023. iv) Both the parties shall appear before the VI Addl. Principal Judge, Family Court, Bengaluru on 09.02.2024 in the transferred proceedings without the requirement of any further notice being issued in this regard; v) Consequent to transfer, the transferee Court shall conduct further proceedings in accordance with law; vi) If a request is made by any of the parties to participate in the transferred proceedings through video conference, the same shall be considered appropriately by the transferee Court in accordance with law; vii) All contentions of the parties are left open. Sd/- JUDGE BS List No.: 1 Sl No.: 19