SMT. AYESHA BEGAM v. SRI. FIROZ PASHA @ V.B. FIROZ PASHA

(BY SRI. UDAYA KUMAR G, ADVOCATE) …PETITIONER …RESPONDENT G Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023 THIS CIVIL PETITION IS FILED UNDER SEC.24 OF CPC, PRAYING TO TRANSFER CASE IN O.S.NO.06/2022 PENDING IN THE FILE OF THE HONBLE PRINCIPAL JUDGE, FAMILY COURT AT KOLAR TO HON'BLE PRL. JUDGE, FAMILY COURT AT BENGALURU AND TO PASS ANY SUCH ORDER WHICH THIS HON'BLE COURT MAY DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. IN CP NO. 506/2023 BETWEEN:

SMT. AYESHA BEGAM, D/O. NAZEER AND SMT. AMEENA, W/O. FAIROZ PASHA, AGED ABOUT 29 YEARS,

MR. UMAR FAROOQ, S/O. V.B. FAIROZ PASHA, AGED ABOUT 5 YEARS,

MR. MOHAMMED OWAIS, S/O. V.B. FAIROZ PASHA, AGED ABOUT 3 YEARS, PETITIONER NO.2 AND 3 ARE REPRESENTED BY THEIR GUARDIAN AS MOTHER, SMT. AYESHA BEGAM AS PETITIONER NO. 1, NOW ALL ARE R/AT DOOR NO. 37, EMERALD EASTERN VILLAS, SARJAPURA, BANGALORE - 562 125. (PETITIONERS PARENTS' HOUSE) (BY SRI. NAVEED AHMED, ADVOCATE) …PETITIONERS - 3 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023 AND: SRI. V.B. FIROZ PASHA, S/O. LATE V. K. BASHA, AGED ABOUT 39 YEARS, R/AT A BLOCK, VEMAGAL, VEMAGAL POST, KOLAR TALUK, KOLAR DISTRICT - 563 106. …RESPONDENT (BY SRI. UDAYA KUMAR G, ADVOCATE) THIS CIVIL PETITION IS FILED UNDER SEC.24 OF CPC, PRAYING TO TRANSFER CASE IN G AND WC NO. 02/2023 PENDING IN THE FILE OF THE HON'BLE PRINCIPAL JUDGE, FAMILY COURT AT KOLAR TO HON'BLE PRL. JUDGE, FAMILY COURT AT BENGALURU AND TO PASS ANY SUCH ORDER WHICH THIS HON'BLE COURT MAY DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. THESE PETITIONS, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Civil Petition No.506/2023 is clubbed with Civil Petition No.410/2023 and disposed off by a common order, taking note that the parties are one and the same.

2. Civil Petition No.410/2023 is filed by the wife seeking for withdrawal proceedings O.S.No.6/2022 instituted by the respondent - husband - 4 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023 before the Family Court at Kolar seeking dissolution of matrimonial relationship and has sought for transfer of such proceedings to the Family Court at Bengaluru.

3. Civil Petition No.506/2023 is also filed by the seeking withdrawal of the proceedings G&WC.No.2/2023 instituted by the respondent - husband which is pending before the Court at Kolar and has sought for transfer of such proceedings to the Family Court at Bengaluru.

The petitioner - wife has contended that though she is staying at Sarjapura, travel to the Court at Kolar involves travel of a distance of about 54 kilometers and such travel causes hardship and inconvenience, more so if the petitioner were to take the children aged about 5 years and 3 years to the Court at Kolar as may be required in case of the Guardian and Wards Act case. Accordingly, it is submitted that the convenience of the wife is required to be taken note of, in light of the law laid down in the case of Smt.M.V.Rekha v. Sri Sathya @ Suraj - ILR 2010 KAR - 5 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023 54070 and transfer sought for in both the petitions may be allowed.

Learned counsel for the respondent submits that as the petitioner - wife is residing at Sarjapura and travel from Sarjapura to the Court at Kolar would be quicker in light of absence of traffic and also a case is pending under the provisions of the Protection of Women from Domestic Violence Act, 2005 instituted by the wife before the Court at Kolar and if that were to be so, the inconvenience as made out cannot be accepted. It is further submitted that travel from Sarjapura to the Family Court at Bengaluru would take much more time due to Bengaluru City traffic and further Family Courts in Bengaluru have heavy work load. It is also submitted that the transfer to Family Court is only to harass the husband.

Heard learned counsel for the petitioner and learned counsel appearing for the respondent. - 6 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023

Insofar as the petitioner residing at Sarjapura and having admitted the children to the school at Sarjapura, said fact is not in dispute. Though it is the submission of learned counsel for the respondent that petition under the provisions of the Protection of Women from Domestic Violence Act, 2005, is pending before the Court at Kolar that by itself would not defeat the right of the wife to seek for transfer.

This Court in the case of Smt.M.V.Rekha v. Sri Sathya @ Suraj - ILR 2010 KAR 54070 in paragraph No.15 has held as hereunder: "The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that ends of justice 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 either of the parties, the social strata of the spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereon and the circumstances of either of the - 7 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023 parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Generally, it is the wife's convenience which must be looked at while considering transfer. Further, when proceedings in different Courts which raise common question of fact and law and when the decisions are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues conflict decisions (See Smt. NandaKishori v. S.B.Shiua Prakash AIR 1993 Kar 87, Sumita Singh v. Kumar Sanjay and Anr. MANU/SC/0936/2001:AIR 2002 SC 396 and Smt. Swarna Gouri v. Sri Vinayak Pujar MANU/KA/7130/2007 : ILR 2007 Kar 4561." (emphasis supplied)

Accordingly, convenience of the wife is required to be taken note of. That apart, it is the stand of the petitioner that she would find it convenient to attend proceedings before the Court at Bengaluru. The contention of the respondent regarding delay of proceedings before the Court at Bengaluru due to heavy work load and attempt of the petitioner to delay the proceedings would - 8 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023 be taken note of and addressed suitably by imposing conditions on the petitioner.

Accordingly, the proceedings in O.S.No.6/2022 and G&WC.No.2/2023 pending on the file of Principal Judge, Family Court at Kolar, are withdrawn and directed to be made over to the Family Court at Bengaluru. The records relating to O.S.No.6/2022 and G&WC.No.2/2023 to be transmitted forthwith to the Family Court at Bengaluru.

Insofar as the contention that the wife is not adhering to the directions passed relating to visitation rights passed in the order, it is the stand of the learned counsel for the petitioner that the said order would be adhered to scrupulously.

Necessary affidavit to be filed by the petitioner that the order passed on I.A.No.2 in G&WC.No.2/2023 would be adhered to in letter and in spirit. Such affidavit to be filed within one week from today. - 9 - NC: 2024:KHC:13827 CP No. 410 of 2023 C/W CP No. 506 of 2023