TRCMP/650/2015 of Smt. Vempati Indiradevi Vs Vempati Arun Kumar on 31 December 2015

O R D E R :

This Transfer CMP is filed to withdraw OP.No.45 of 2015from the file of Family Court, West Godavari District at Eluru andtransfer the same to the Court of Senior Civil Judge,Machilipatnam to be tried along with HMOP.No.136 of 2013.

The case of the petitioner is that her marriage with therespondent was performed on 26.01.2012 at Medical AssociationHall, Machilipatnam as per Hindu rites and customs; that after themarriage the petitioner joined the company of the respondent andthat after six months, the respondent and his family membersstarted harassing the petitioner for additional dowry. It is statedthat ultimately the petitioner was necked out from the matrimonialhome and thereafter, as the petitioner has no other go, she isstaying with her parents at Machilipatnam and also lodged a policecomplaint against the respondent and his family members and thatsubsequently the police registered a case in Crime No.34 of 2013under Section 498-A IPC. It is also stated that the petitioner alsofiled HMOP.No.136 of 2013 on the file of Senior Civil Judge,Machilipatnam under Section 9 of the Hindu Marriage Act, seekingrestitution of conjugal rights and also maintenance Case inMC.No.25 of 2013 on the file of II Additional Judicial First Class Magistrate at Machilipatnamseeking maintenance. It is further stated that the respondent isalso appearing and contesting the aforesaid cases filed by thepetitioner. Meanwhile, the respondent filed OP.No.45 of 2015 onthe file of Family Court, West Godavari District at Eluru, seekingdissolution of the marriage. The grievance of the petitioner is that she cannot travel all the way from Machilipatnam to Eluru fordefending the OP filed by the respondent as she has no maleassistance to move from her place to Eluru and as such, field thepresent Transfer CMP.

Though, notice is served, no counter is filed on behalf ofrespondent and the aforesaid averments made by the petitionerwere uncontraverted.

The aforesaid facts mentioned by the petitioner goes toshow that the petitioner instituted MC.No.25/2013 for maintenanceand HMOP.No.136/2013 seeking restitution of conjugal rights andat a later point of time the respondent instituted OP.45 of 2015 forgrant of divorce and that the OP.No.136 of 2013 and OP.No.45 of2015 have to be tried together to avoid conflicting Judgments.More so, the respondent is contesting the cases filed by thepetitioner at Eluru. Further, the Apex Court in Sumita Sing v.

Kumar Sanjay and another[[1]]held that in transfer of matrimonialproceedings initiated by the husband against wife, it is theconvenience of wife that has to be looked at.

Further, as per Section 21-A(2)(b) of the Hindu MarriageAct, 1955 relied on by the petitioner it was held as follows; “21-A:- Power to transfer petition in certain cases:

(2) In a case where sub-section (1) applies;- (a)If the petitions are, presented to the same District Court,both the petitions shall be tried and heard together by thatDistrict Court;both the petitions shall be tried and heard together by thatDistrict Court; (b)If the petitions are presented to different District Courts,the petition presented later shall be transferred to thedistrict Court in which the earlier petition was presentedthe petition presented later shall be transferred to thedistrict Court in which the earlier petition was presented and both the petitions shall be heard and disposed oftogether by the district Court in which the earlier petitionwas presented.

A reading of the aforesaid section makes it clear that thepetition filed at a later point of time shall be transferred to theDistrict Court in which the earlier petition was presented.

In view of the above facts and circumstances, I deem itproper to transfer OP.No.45/2015 from the file of Family Court,West Godavari at Eluru, to the Court of Senior Civil Judge,Machilipatnam.

Accordingly, the Transfer CMP is allowed and OP.No.45 of2015 pending on the file of the Judge, Family Court, WestGodavari District at Eluru is transfer to the Court of Senior CivilJudge, Machilipatnam to be tried along with HMOP.No.136 of2013. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pendingin the transfer petition, shall stand closed.

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A.RAJASHEKER REDDY, J

31.12.2015t k.

[1]AIR 2002 SUPREME COURT 396AIR 2002 SUPREME COURT 396