Audio / Video Evidence,in Dowry Harassment Divorce case

Andhra High Court
THE HONOURABLE SRI JUSTICE V.V.S. RAO
TRANSFER CMP.NO. 225 OF 2001

05/10/2001

MRS. SNEHALATHA
Vs.
DR. S. RAMAKRISHNA REDDY

COUNSEL FOR PETITIONER: MR. P.V. SANJAY KUMAR

COUNSEL FOR RESPONDENTS: MS. SUMALINI REDDY

:ORDER:

The petitioner invoked the jurisdiction of this Court under Section 24 of
the Code of Civil Procedure, 1908 (CPC for brevity). She prays this Court to
transfer the original petition being O.P.No.388 of 2001 on the file of the Court
of the Judge, Family Court, Hyderabad (Family Court, Hyderabad, for brevity)
to the Court of the Judge, Family Court, Vijayawada (Family Court, Vijayawada
for brevity). Be it noted that the said O.P. was filed by the respondent under
Section 13(1)(ia) of the Hindu Marriage Act, 1955 (the Act for brevity)
seeking decree to annul and dissolve the marriage between the petitioner and the
respondent.
The necessary facts in brief are as follows. The petitioner is wife of
respondent. The marriage between them was solemnized on 13.10.1995 at
Gopalapuram village, West Godavari District. After that, the petitioner and the
respondent admittedly set up their matrimonial home in Hyderabad. It is alleged
by the petitioner that the respondent ill-treated her on the ground that she did
not bring sufficient dowry by reason of which she suffered physical and mental
harassment in one way or another. Ultimately, in January, 2001, the respondent
left her at Gopalapuram with her parents. He also gave ultimatum that she would
be taken back to Hyderabad only if she brings another sum of Rs.6,00,000/-. Her
parents could not arrange such huge amount and all the efforts for conciliation
failed. She is left with no option to continue with her parents at Gopalapuram.
The respondent allegedly concocted a fictitious account of their marital life
and filed O.P.No.388 of 2001 before the Family Court, Hyderabad for divorce
under Section 13(1)(ia) of the Act. She is now required to take suitable steps
to contest the O.P. Staying at Gopalapuram she is unable to prosecute the O.P.
properly. Her father is an employee of Telecommunications Department at
Gopalapuram and cannot afford to spare time and money for making frequent trips
to Hyderabad or to finance her visits. The respondents parents are permanent
residents of Gunnampalli Village, Dwaraka Tirumala Mandal, West Godavari
District, which is very close to Vijayawada. It is not only convenient if the
O.P. is transferred to Vijayawada and the same would not cause any inconvenience
to the respondent whereas the if the O.P. is tried in Hyderabad she would have
to make frequent trips to Hyderabad. Therefore, she prayed for transfer of the
O.P.
This Court while ordering notice by order dt.14.8.2001 stayed the trial in
O.P.No.388 of 2001. After receiving notice the respondent filed
C.M.P.No.16457 of 2001 seeking to vacate the order of stay dt.14.8.2001. He
also filed elaborate counter opposing the transfer. Indeed, the learned counsel
appearing for the respondent also sought to place on record a recorded audio
tape allegedly containing the conversation between the respondent on one hand
and Sri K.Babu Rao and Sri A.Subba Rao of Jangareddygudem, West Godavari
District on the other. It is stated that K.Babu Rao is the petitioners
maternal uncle and A.Subba Raois the former business partner of Babu Rao and
both of them made phone call from a hotel room in Hospet. This Court declined
permission to the learned counsel to bring the recorded tape on record as the
same was not supported by separate affidavit and also for the reason that for
the purpose of deciding this application for transfer the same is not relevant.
The respondent in his counter-affidavit accompanying vacate stay application
admits the marriage. He also says that he is highly qualified with Ph.D. in
economics and he has undertaken various projects to his credit besides acting in
advisory capacity to various institutions. He also states that under his
guidance the petitioner completed her Masters on Environmental Protection with
the Indian Institute of Ecology and Environment, New Delhi. In spite of this
the petitioner was not happy with the marriage, which was against her wishes as
she was unable to compromise with the mediocre life style. The petitioner acted
cruel towards him and this cruel attitude affected his mental ability and he
could not perform his professional duty. He also underwent treatment for sub-
conscious mind therapy and the petitioner left on her own voluntarily on
9.1.2001 and he received several abusive and threatening calls not only from her
but also from her father and relatives. As there is no hope of change in the
petitioners attitude he filed O.P.No.388 of 2001 on the file of the Family
Court, Hyderabad on 21.6.2001. He also states that after marriage the
petitioner is in the habit of staying at Gopalapuram for spells ranging from 2
to 4 months and she was always not inclined to come back. The allegation of
demand of dowry is denied. Prior to wedding, the petitioners family was in
financial doldrums and he never asked for any dowry at the time of marriage. On
intervening night of 12.6.2001 and 13.6.2001 her uncle Babu Rao, and Subba Rao
talked from Hospet and threatened him.
Adverting to the grounds on which the transfer is sought the respondent states
that Ms.Gowri Kumari, resident of Prajay Engineering Syndicate Apartments,
Secunderabad, is youngest sister of petitioners mother and is working in
Hyderabad at Bowenpally. She can as well stay with her aunt. At Vijayawada the
petitioners father has close acquaintance with political, police and goonda
people. These people are notorious in indulging in physical threats or
violence, psychic torture, over bearing coercion and intimidatory methods.
Therefore, it will be impossible for him to take shelter under legal system for
proving his case. Besides, he has parents who are under treatment under
Cardiologist. Further, due to increasing threatening calls his parents have
left him and living with his two brothers at Visakhapatnam and Ongole as well as
sister at Kovvur. They are not living at Gunnampalli due to threats. The
petitioner is staying at Gopalapuram at a distance of 360 Kms and therefore he
is willing to bare the traveling charges of Rs.300/- to 500/- for every hearing.
His profession does not permit him to visit the Court at Vijawada where his life
would be in danger if the case is transferred to Vijayawada.
The learned counsel for the petitioner Sri P.V. Sanjay Kumar while reiterating
submissions in Transfer of O.P., placed reliance on the judgment of the Supreme
Court in SHAKUNTALA MODI v. OM PRAKASH BHARUKA1. He also placed reliance
on the judgment of the Karnataka High Court in NANDA KISHORI v.
S.B.SHIVAPRAKASH2.
On the other hand, Ms. Sumalini Reddy, learned Counsel for the respondent
submits that the marriage took place at Gopalapuram and the wife and husband
last resided together at Hyderabad and effective oral evidence both for the
petitioner and the respondent can only be brought on record at Hyderabad, where
the respondent filed petition for divorce. She also submits that the petitioner
and her relatives are bent upon causing harm to the respondent and therefore the
respondent will not be able to effectively prosecute his case at Vijayawada.
The short question that arises for consideration is whether the perceived
hardship to the petitioner in prosecuting her case at the place where the
respondent instituted the case for divorce can be defeated by allegations by
respondent on threat perception to life.
Sections 22, 23, 24 and 25 of CPC deal with transfer of suits. As per
Sections 22 and 23 where a suit may be instituted in any one of two or more
Courts the defendant may at the earliest possible opportunity apply to the
appellate Court to transfer the suit to another Court. Section 24 confers
general power of transfer and withdrawal. The power is exercisable either on
the application of the parties or suo motu by the High Court or the District
Court. Under sub-section (2) of Section 24 the High Court or the District Court
as the case may be is empowered to transfer or withdraw a suit subject to any
special directions in the case of an order of transfer. By CPC (Amendment) Act,
1976, sub-section (5) of Section 24 is added under which a suit can be
transferred to a Court which has no jurisdiction to try.
In this regard, it may also be noticed that as per Section 10 of the Family
Courts Act, 1984 the provisions of CPC and the Provisions of Code of Code of
Criminal Procedure will apply to civil proceedings and criminal proceedings
before the Family Court respectively.
Apart from the provisions in the CPC, which apply to proceedings under the
marriage laws, Section 21A of the Act enables the High Court to transfer a
petition for judicial separation or for a decree of divorce in the manner
provided under Section 21A (2). Here the excerption of Section 21A which is
self-explanatory is necessary.
  21A. Power to transfer petitions in certain cases:- (1) Where-
(a) a petition under this Act has been presented to a District Court having
jurisdiction by a party to a marriage praying for a decree for judicial
separation under Section 10 or for a decree of divorce under section 13, and
(b) another petition under this Act has been presented thereafter by the other
party to the marriage praying for a decree for judicial separation under Section
10 or for a decree of divorce under section 13 on any ground, whether in the
same district court or in a different district court, in the same State or in a
different State,
 the petitions shall be dealt with as specified in sub-section (2).
(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 that district court; and
(b) if the petitions are presented to different district courts, the petition
presented latter shall be transferred to the district court in which the earlier
petition was presented and both the petitions shall be heard and disposed of
together by the district court in which the earlier petition was presented.
(3) In a case where clause(b) sub-section (2) applies, the Court or the
Government, as the case may be, competent under the Code of Civil Procedure,
1908 to transfer any suit or proceeding from the district court in which the
later petition has been presented to the district court in which the earlier
petition is pending, shall exercise its powers to transfer such later petition
as if it had been empowered so to do under the said Code.

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A plain reading of sub-section (2) of Section 21A makes it clear that the power
of transferring a petition under Sections 10 or 13 of the Act is governed by the
provisions contained therein. As per this provision if two petitions are
presented to different District Courts, the petition presented latter shall be
transferred to the District Court in which the earlier petition was presented
and both petitions shall be heard and disposed of together by the District Court
in which earlier petition was presented. If the husband has filed a petition
say for divorce and incidentally if the wife also filed a petition for
restitution of conjugal rights or some other relief, the transfer of the case
either by the husband or wife is permissible subject to condition that the
latter case by either spouse will be transferred to the earlier case by either
spouse.
Section 21A of the Act was introduced by Hindu Marriage (Amendment) Act, 1976.
  It has to be presumed that the Parliament was aware the earlier
provisions. Therefore as per Section 19 of the Act a petition under the Act can
be presented to a District Court within local limits of whose jurisdiction
marriage was solemnized or the respondent at the time of petition resides or
parties to the marriage last resided together. The amended Section 21A of the
Act was therefore purposefully contained such provision as is noticed above.
RELEVANT CASE LAW:
In B. SREELAXMI v. B.T.GURUMURTHY3 this Court has considered the effect of
Section 21A of the Act and the powers of the High Court under Section 24 of CPC
to transfer a case. After referring to G.VIJAYALAKSHMI v. G.RAMACHANDRA
SEKHARA SASTRY4 and PRIYAVARI MEHTA v. PRIYANATH MEHTA5, SMT. RAMAKANTA v.
ASHOKKUMAR6 this Court has laid down as under.
On the same parity of reasoning, in my view, the powers conferred on the High
Court under Section 24 of the Hindu Marriage Act (sic. CPC) are not curtailed or
excluded either by Section 21 and Section 21-A of Hindu Marriage Act and
therefore the contention of the learned counsel for the petitioner that earlier
petition under the Hindu Marriage Act cannot be transferred has no force.

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I may also consider the judgment of the Supreme Court in SHAKUNTALA MODIS
CASE (supra). The husband instituted a case for custody of three children in
Delhi. Wife filed an application for transfer of the case from Delhi to
Dibrugarh where she had also instituted an application in the same Court
earlier. Husband demurred that the transfer of the case from Delhi would cause
hardship to him as he is not likely to get proper legal assistance at Dibrugarh.
He did not, however, take any plea of financial difficulties and in fact he also
offered to pay expenses of wife for traveling from Dibrughar to Delhi by air, if
necessary. The Supreme Court did not accept the contentions of the husband and
ordered for transfer of the case from Delhi to Dibrughar. The relevant
observations are as follows.
On an earlier occasion the respondent made an application for transfer of the
Dibrugarh case to Delhi, which was rejected by this Court. The Dibrugarh case,
therefore, has to be heard there. In the circumstances it is proper to
transfer the Delhi case to Dibrugarh. Although it may cause the respondent some
trouble of undertaking the journey to Dibrugarh but, for that reason in the
facts of the present case it cannot be assumed that he will be prejudiced in
prosecuting his case. If he is not in any financial difficulty, as it appears
from the records and his own statement before this court, he can make an
appropriate arrangement for his representation at Dibrugarh and may not remain
at Dibrugarh continuously for looking after the cases.

In NANDA KISHORI CASE (supra) the husband filed case for divorce before Family
Court, Bangalore. The wife approached the High Court for transferring the said
case to the jurisdictional Court at Hubli as she was living there with her
parents. She alleged that she has no companion to accompany her to attend the
court on every date of hearing and that her aged parents are not in a position
  to travel along with her. She also alleged that she is under reasonable
apprehension that her husband may abuse her during her visit to Bangalore in
connection with her case which might endanger her life. The Karnataka High
Court observed that in the absence of any statutory guidelines the power to t
transfer a case must be guided with the object of subserving ends of justice and
the transfer of a case depends on various circumstances and that no straight
jacket formula could be envisioned. The Court referred to the Judgment of the
Supreme Court in MANEKA SANJAY GANDHI v. RANI JETHMALANI7 and laid down the
following tests to be applied while considering applications for transfer in
matrimonial cases.
As such, whenever Courts are called upon to consider the plea of transfer in
matrimonial matters Courts have to take into consideration the economic
soundness of either of the parties, the social strata of the spouses and the
behavioral pattern of their standard of life antecedent to marriage and
subsequent thereon and after the snap of the knot which resulted in marriage,
the circumstances of either of the parties in eking out their livelihood and
under whose protective umbrella they are seeking their sustenance of life.

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An analysis of statutory provisions and authorities cited before this Court
would lead to the following principles to be applied while considering the
petitions for transfer of matrimonial cases from one Court to another.
(1) Section 21A of the Hindu Marriage Act, 1955 does not in any manner curtail
the power of the appellate Court or the High Court under Sections 22 and 24 of
CPC respectively to transfer the cases from one Court to another Court;
(2) In exercise of powers under Section 24 of C.P.C. it is always open to the
High Court to transfer case from one court to another court which has no
jurisdiction to try it subject, however, to Court does not lack inherent
jurisdiction. E.g., a matrimonial case cannot be transferred to a court of
Junior Civil Judge;
(3) As observed by the Supreme Court prejudice in prosecuting case to either
of the spouse is relevant consideration in a Transfer application;
(4) While ordering transfer of the cases, the Court should keep in mind the
provisions of Section 19 of the Hindu Marriage Act for any case filed by any
spouse in a place other than the places referred to in Section 19 viz., the
place where the marriage was performed, the place where the respondent resides
at the time of presentation of the case and/or the parties last resided. It
should be remembered that Section 19 adumbrates a sound principle, in that, any
matrimonial disputes can be best subjected to a fair trial in the places
referred to herein;
(5) It is also relevant to take into consideration the economic soundness, the
social strata and the behavioral pattern antecedent to marriage of the parties
to the case while ordering transfer;
(6) While applying the above principles having a bearing on the decision, fair
trial should be assured to both the parties and no party should be allowed to
take advantage of the Court process;
(7) Under sub-section (2) of Section 24 the High Court transferring suit or
proceeding from one Court to another may issue special directions including
directions to retry the matter or proceed from the point at which it was
transferred;
(8) The special directions can also include a direction to the party seeking
transfer to pay a determined amount by way of defraying, living and traveling
and other miscellaneous expenses, if the spouse is wife to herself and also to
the companion. What would be the reasonable expenses would depend on the status
and standard of living of the parties.
  In this case, it is not denied before this Court that the marriage was
solemnized at Gopalapuram in West Godavari District and the parties last resided
at Hyderabad. It is also not disputed that the trial is not yet commenced at
Family Court, Hyderabad. The petitioner has to necessarily travel either
alone or with male company, be it her father or brother, whether trial is at
Hyderabad or Vijayawada. Therefore, subject meeting her expenditure she cannot
be said to have any hardship. On the other hand, admittedly the
respondent/husband is a consultant in his field and if he is made to travel for
the purpose of the case, it would certainly cause prejudice to his job. Be that
as it may, at this stage, no credence can be given to the statements made by the
respondent/husband in his affidavit that one Babu Rao maternal uncle of the
petitioner and his business partner Subba Rao threatened him. These matters
have to be gone into by the concerned Family Court. The offer made by the
husband that he is willing to pay amount towards travel and living expenses to
the petitioner as and when she visits Hyderabad, is also relevant consideration
in this case.
  After having given anxious consideration to the facts and circumstances of
the case and the principles to be applied in a matter of this nature, the
respondent/husband, to meet the ends of justice, should be directed to pay to
and fro Second Class Three Tier Non-A.C. railway charges from Gopalapuram to
Hyderabad for two adult persons, and also living expenses for three days for two
persons so that without any hardship the petitioner can visit Hyderabad for
prosecuting the case and also instructing her counsel. An amount of Rs.500/-
for three days for living expenses in addition to actual railway charges for two
persons would be reasonable. The petitioner is not entitled for any other
relief in this petition.
  In the result, subject to above observations and directions, the Tr.C.M.P.
is disposed of without any order as to costs.

?1 AIR 1991 SC 1104
2 AIR 1993 Karnataka 87
3 1998 (6) ALT 819
4 AIR 1981 SC 1143
5 AIR 1980 BOMBAY 337
6 AIR 1977 P&H 373
7 AIR 1979 SC 468

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