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Smt Ester Bhuvana K vs Sri Pradip Isaac on 23 February, 2018

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 23RD DAY OF FEBRUARY, 2018

BEFORE

THE HON’BLE MR.JUSTICE K. N. PHANEENDRA

CIVIL PETITION NO. 193/2017

BETWEEN

SMT. ESTHER BHUVANA K,
W/O PRADIP ISAAC,
R/A NO. 24/10, NEW THILLAINAGAR,
1ST AVENUE, 5TH CROSS (EAST),
VADAVALLI, PAPANNACHENPUDUR,
COIMBATORE NORTH, COIMBATORE,
TAMILNADU-641 041
… PETITIONER
(BY SRI. RUDRAPPA P., ADV)

AND

SRI. PRADIP ISAAC,
S/O COLONEL. P. ISAAC,
AGED ABOUT 39 YEARS,
R/A #317, S.L.V. NIVAS,
PATTANDURAGRAHARA VILLAGE,
ECC ROAD, WHITEFIELD,
BENGALURU – 560 066
… RESPONDENT
(BY SRI. S. V. GIRIDHAR ADV.)

THIS CIVIL PETITION FILED UNDER SECTION 24
OF CPC., PRAYING TO. A) TRANSFER THE PETITION IN
MC NO. 43/2017 PENDING ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE COURT, BENGALURU
RURAL DISTRICT, BENGALURU TO THE FILE OF
HON’BLE PRINCIPAL FAMILY COURT, COIMBATORE
DISTRICT COURT COMPLEX, COIMBATORE, TAMIL
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NADU. B) PASS SUCH OTHER APPROPRIATE JUDGMENT
OR ORDER/S AS THIS HON’BLE COURT DEEMS FIT
UNDER FACTS AND CIRCUMSTANCES OF THE CASE, IN
THE INTEREST OF JUSTICE AND EQUITY.

THIS CIVIL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:

ORDER

Heard the learned counsel for the petitioner and

the learned counsel for the respondent. Perused the

records.

2. The petitioner has approached this court

seeking transfer of MC No.43/2017 pending on the file

of the II Addl. Senior Civil Judge, Bengaluru Rural

District, Bengaluru, to the file of the Principal Family

Court, Coimbatore District in Tamilnadu.

3. The learned counsel for the respondent has

filed a detailed objection contesting the petition

seriously.

4. At the out set, the learned counsel for the

petitioner submitted with regard to the jurisdiction of

this court u/s.23 of the CPC submitting that this court
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has got jurisdiction to pass an order to transfer a case

inter-state i.e., from Bengaluru to Coimbatore, in

Tamilnadu. So far as the jurisdiction of this court is

concerned, the respondent’s counsel has no objection

and he submits that this court has got jurisdiction.

5. The petitioner has claimed transfer of this

petition mainly on two grounds. One is she is presently

unemployed and residing in Coimbatore with her

parents and it is very difficult for her to come over to

Bengaluru, and to appear before the Bengaluru Court;

Secondly, she has taken up the contention that she

being a woman, cannot travel alone from Coimbatore to

Bengaluru, frequently and it causes inconvenience to

her. Further, it is submitted that if she has to travel to

Bengaluru to attend the case, she has to be

accompanied by her parents, which is an additional

burden to her. Except these two grounds, no other

grounds are urged before this court explaining the

difficulties to attend before Bengaluru Court.

6. Contrary to the above said contention raised in

the petition, the learned counsel for the petitioner has
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also argued that the marriage of the petitioner with the

respondent took place about 10 years back and the

husband and wife lived happily with each other for a

period of five years in Bengaluru, and both were

Software Engineers and they were working together in a

Company are not in dispute. It is further argued that,

thereafter, the petitioner left the conjugal company of

the respondent and started residing in her parents

house at Coimbatore. The respondent made all his

efforts to get her back, but his efforts were of no use.

He conversed with her through E-mail correspondence,

by exchange of letters and she has also expressed in

her reply dated 29.1.2017 that she is ready and willing

for the divorce, but it should happen outside the judicial

system, particularly before a Church, wherein she has

got utmost belief and faith in Church proceedings. As

the respondent expressed his willingness to take divorce

in accordance with law by way of judicial verdict, he

again wrote to her on 27.2.2017 stating that if she is

willing to have divorce, he can move the competent

court for mutual divorce by means of filing mutual
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consent divorce petition or if she is not willing, he will

file a petition in accordance with the provisions of the

Indian Divorce Act for divorce on available grounds to

him.

7. Further, it appears, the petitioner has not

replied. As the facts stands, it is the husband who has

filed the petition before the Bengaluru Court in MC

No.43/2017. The learned counsel for the respondent

has relied upon a decision of the Hon’ble Apex Court

reported in (2006) 9 SCC 197 between Anindita Das

and Srijit Das, wherein the Hon’ble Apex Court has

expressed its anguish with regard to the innumerable

transfer petitions being filed and therefore, the court

has laid down certain circumstances as to under what

circumstances, the court can grant transfer at

paragraphs 4 and 5 in the case cited supra, which reads

thus:

“4. This court is now required to
consider each petition on its merit. In this
case the ground taken by the wife is that
she has a small child and that there is
nobody to keep her child. The child, in this
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case, is six years old and there are
grandparents available to look after the
child. The respondent is willing to pay all
expenses for travel and stay of the
petitioner and her companion for every visit
when the petitioner is required to attend the
court at Delhi. Thus, the ground that the
petitioner has no source of income is
adequately met.

5. Except for stating that her health is
not good, no particulars are given. On the
ground that she is not able to come to Delhi
to attend the court on a particular date, she
can always apply for exemption and her
application will undoubtedly be considered
on its merit. Hence, no ground for transfer
has been made out.”

In the said case, the husband was ready and willing to

meet the expenses. The court considering the grounds

urged therein has in fact rejected the petition as those

grounds are not sufficient to grant the transfer petition.

8. Likewise, the learned counsel has also relied

upon a decision of the Madras High Court reported in

2009 SCC On Line Raj 4290: (2010) 3 CCC 472
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between Smt. Jaiwanti Gahija and Ashok Kumar

Sharma, wherein the transfer application was partly

allowed considering the grounds urged that the husband

was willing to bear the expenses of the wife and subject

to that, some arrangements have been ordered by the

Court.

9. Therefore, looking to the above said facts and

circumstances of the case and the above said rulings, it

is clear that, in all the cases transfer is not automatic,

merely because the wife files a petition. Normally, the

court considers the petition of the wife under peculiar

circumstances, if she has a small kid or if she is

suffering from any ill-health or if she is badly placed in

the life, so that she cannot travel due to her mental

disability or physical disability or any cases are pending

filed by the wife at the place of the wife and the

husband has already attending the case, to assist the

wife to travel from one place to another, the court can

consider such circumstances as sufficient ground for

transfer.

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10. However, in this particular case, the two

grounds raised by the petitioner is that she is

unemployed and because of that reason, she cannot

travel and she being a woman, therefore, frequently,

she cannot travel to Bengaluru, are no grounds for

transfer of the Petition from one place to another place.

A woman and a man are equally treated in our

Constitution. Equal opportunity, equal empowerment

have been given to the man and the woman. Merely

because she is a woman, that itself is not the criteria for

giving transfer of the petition. The second thing is that

she is unemployed and she cannot travel from that

place to Bengaluru, is also not tenable because while

arguing the matter, the learned counsel for the

respondent has specifically submitted that he would

make all arrangement and pay the expenses of the

petitioner to travel from Coimbatore to Bengaluru.

Therefore, under the above said facts and

circumstances of the case particularly in this case, no

such sufficient grounds or strong grounds are made out

by the wife to transfer the Petition from Bengaluru to
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Coimbatore. Hence, the grounds are insufficient and

because of that reason, the Petition deserves to be

dismissed.

Accordingly, the Petition is dismissed.

However, it is made clear that the trial Court has to fix

up the cost to be payable by the respondent towards

the expenditure that may be meted out by the

petitioner in order to travel from Coimbatore to

Bengaluru, to attend the case.

Sd/-

JUDGE

PL*

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