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Praveen S vs K R Prathiba on 10 January, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10TH DAY OF JANUARY 2019

BEFORE
THE HON’BLE MR. JUSTICE ALOK ARADHE

CIVIL PETITION NO.279 OF 2018

BETWEEN:

PRAVEEN S
S/O SATHYA REDDY
AGED ABOUT 32 YEARS
R/AT HULKUL NO.340
2ND CROSS, 5TH MAIN
SADANANDA NAGAR
BANGALORE-38.
… PETITIONER
(By Mr. D.R. RAVISHANKAR, ADV.)

AND:

K.R. PRATHIBA
W/O PRAVEEN S
AGED ABOUT 32 YEARS
R/AT 2ND MAIN
5TH WARD, RAJKUMAR NAGAR
KANAKANA PALYA, KOLAR-563101.
… RESPONDENT
(By Mr. HARISH H.V. ADV.,)

This Civil Petition is filed under Section 24 of the CPC
praying to withdraw G WC 9/2018 pending on the file of
the Principal Judge, Family Court, Kolar and Transfer the
same to the court of Principal Judge, Family Court,
Bengaluru for the purpose of trial and disposal of the same in
accordance with law in the interest of justice and equity
etc.
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This Civil Petition coming on for Admission this day,
the Court made the following:-

ORDER

Mr.D.R.Ravishankar, learned counsel for the

petitioner.

Mr.Harish H.V., learned counsel for the

respondent.

2. The civil petition is admitted for hearing.

With consent of the parties, the same is heard finally.

3. In this petition under Section 24 of the Code

of Civil Procedure, 1908 the petitioner seeks transfer of

the proceedings instituted by the respondent-wife under

the Guardians and Wards Act, 1890 (hereinafter

referred to as the ‘GW Act’ for short) viz., the GWC

No.9/2018 pending on the file of Principal Judge Kolar

and to transfer the same to the court of competent

jurisdiction, Bengaluru.

4. Facts giving rise to filing of the petition

briefly stated are that the marriage between the parties
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was solemnized on 29.01.2012 and two children were

born from the marriage who were aged 4 and 6 years.

On 09.01.2015, the respondent filed a petition under

Section 9 of the Hindu Marriage Act, 1955 (hereinafter

referred to as ‘the Act’ for short) seeking restitution of

conjugal rights viz., M.C.No.182/2015. On 21.1.2015,

the respondent has filed a proceeding against the

petitioner under Section 12 of the Domestic Violence

Act, 2005 (hereinafter referred to as the ‘D.V.Act’ for

short) viz., Crl.Misc.No.15/2015 at Bengaluru in which

one of the relief’s claimed by the respondent is a

direction to the petitioner to provide a separate

accommodation to the petitioner and her children at

Bengaluru. The petitioner has filed a petition under

Section 13 of the Act seeking dissolution of marriage at

Benglauru. The respondent-wife has instituted

proceeding under the GW Act viz., in GW.C

No.9/2018 before the Court at Kolar. The petitioner-

husband has therefore, filed this petition seeking
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transfer of the proceeding to the court of competent

jurisdiction at Bengaluru.

6. Learned counsel for the petitioner submitted

that the children are prosecuting their studies at

Bengaluru and they have taken admission in academic

Session 2018-19 in Bengaluru. The respondent had

filed a petition seeking a writ of habeas corpus against

the petitioner on the ground that on 14.07.2018, the

petitioner has illegally taken the custody of the children.

However, it is submitted that after a Bench of this Court

interacted with the children, the respondent withdrew

the petition with a liberty to take recourse to such

remedy as may be available to the respondent under

the law. It is submitted that all the proceedings

between the parties are pending before the court of

Bengaluru and respondent-wife has not sought for

transfer of the proceeding. Therefore, in the interest of

the children, which is of paramount consideration, the

proceeding pending before Kolar be transferred to
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competent court at Bengaluru. In support of his

submissions, learned counsel has placed reliance on a

decision of the Supreme Court in ‘Prateek Gupta vs.

Shilpi Gupta’, 2018 2 SCC 309.

7. On the other hand, learned counsel for the

respondent submitted that upto 14.07.2017, the

children were with the respondent at Kolar and the

petitioner has abducted the children. It is also

submitted that by an order dated 22.11.2018, the

Family Court has held that it has jurisdiction to entertain

the proceeding under the GW Act and the aforesaid

order has been challenged by the petitioner by way of

W.P.No.75/2018 before this Court in which no impugned

order has been granted. It is further submitted that in

case the proceeding are transferred to Bengaluru the

children would suffer inconvenience and the court at

Bengaluru has no territorial jurisdiction to try the

proceeding. In support of the aforesaid submission

learned counsel has placed reliance on a decision of
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Karnataka High Court in ‘MR.K.U.POOVIAH @ VIVEK

vs. MRS.NAMITHA POOVIAH’, in W.P.

No.3376/2013 and decision of Madhya Pradesh High

Court in ‘SMT.ABHILASHA CHOURASIYA vs. VIJAY

KUMAR CHOURASIYA, in M.C.C.No.495/2014.

8. I have considered the submissions made by

the learned counsel for the parties and have perused

the record. Admittedly, the proceeding under Section 9

and Section 13 of the Act are pending between the

parties at Benglauru. The respondent has also filed an

application under Section 12 of the D.V.Act at

Bengaluru. The respondent has not sought transfer of

proceeding to Kolar. Admittedly, the children are

presently residing in Bengaluru and are prosecuting

their studies. Therefore, prima facie it cannot be said

that the Family Court at Bengaluru has no territorial

jurisdiction to try the proceeding. In any case, in this

proceeding under Section 24 of the Code it is not

necessary for this Court to record a finding on the said
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issue and the same is kept open to be dealt with by the

court. In a petition under Section 24 the convenience of

the parties is required to be taken into consideration. It

is well settled in law that though Section 24 of the Code

of Civil Procedure confers power on Court to transfer

proceeding, yet this power has to be exercised with

circumspection and care. Convenience of the parties has

to be taken into account. In the case of ‘RAJWINDER

KAUR vs. BALWINDER SINGH’ in (2003) 11 SCC 726,

Hon’ble Supreme Court had directed transfer of

proceeding taking into account the fact that wife was

required to travel long distance and was required to

take care of daughter aged four years. Similarly, in the

case of ‘SUMITA SINGH VS. KUMAR SANJAY AND

ANOTHER’ in AIR 2002 SC 396, Hon’ble Supreme Court

observed that it was the husband’s suit against wife

and, therefore, convenience of wife has to be taken into

account and in the case of ‘RAJANI KISHOR

PARDESHI VS. KISHOR BABULAL PARDESHI’

(2005) 12 SCC 237, wherein it has been held that in a
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matrimonial dispute, convenience of the wife is of the

paramount consideration, the proceeding instituted by

the respondent under Section 13 of Hindu Marriage Act

deserves to be transferred.

9. The proceeding under GW Act has been

instituted for custody of the children who are admittedly

prosecuting their studies in Bengaluru. In case they are

required to attend the proceeding at Kolar they will be

put to inconvenience. The welfare and interest of the

children is of paramount consideration. Therefore, in

the facts and circumstances of the case and taking into

account the fact that the children are residing in

Bengaluru and the proceedings instituted in Kolar are

directed to be transferred to the competent court at

Bengaluru having jurisdiction.

Accordingly, the petition is allowed.

Sd/-

JUDGE
ss

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