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Vishal Gayakwad vs Smt Suparna on 13 November, 2018

1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER 2018
BEFORE
®
THE HON’BLE MR.JUSTICE S. SUNIL DUTT YADAV
Civil Petition No.273 OF 2015
c/w
Civil Petition No.257 OF 2015
Between:

Vishal Gayakwad,
Aged about 35 Years,
S/o Shatwaji Gayakwad,
R/at No.113, 2nd Floor,
10th Cross, 4th Main,
Duo Marvel Layout,
Ananthapura Village
Yelahanka, Bengaluru – 560 004.
(Presently residing in above address) … Petitioner
(Common in both petitions)

(By Sri B.T.Venkatesh, Advocate)

And:
Smt. Suparna,
D/o Sri Vital Dondibba Katakdond,
W/o Vishal Gayakwad,
Aged about 28 Years,
Residing at Hachnal P.H.Tq District,
Bijapur – 586 217.
Also residing at KHB Colony,
Bijapur – 586 101. … Respondent
(Common in both petitions)

(By Sri Santosh S.Nagarale, Advocate)
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Civil Petition No.273/2015 is filed under Section
24 of CPC praying to pass an order withdrawing the
petition G WC No.10/2014, pending on the file of
Family Court at Bijapur and transfer the same to the
Family Court at Bangalore.

Civil Petition No.257/2015 is filed under Section
24 of CPC praying to pass an order withdrawing the
petitions M.C.No.37/2015, Crl.Misc.No.320/2014 and
G WC No.10/2014, pending on the file of Family
Court at Bijapur and transfer the same to the Family
Court at Bangalore.

These Civil Petitions having been heard and
reserved on 27.08.2018 and coming on for
pronouncement of order, this day, the Court made the
following:
ORDER

C.P.Nos.273/2015 and 257/2015 involve the

same parties and hence both petitions are taken up

together for consideration and are being disposed of by

a common order.

2. C.P. No.273/2015 is filed by the petitioner –

husband against respondent-wife seeking for

withdrawing the petition in G WC No.10/2014

(petition filed by the respondent-wife seeking custody of

the daughter) pending on the file of the Family Court at
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Bijapur and has sought for transfer of the same to the

Family Court at Bengaluru. C.P.No.257/2015, on the

other hand, has been filed by the petitioner-husband

against respondent-wife seeking for withdrawal of the

proceedings in M.C.No.37/2015 (petition filed by the

petitioner-husband seeking for dissolution of marriage)

pending on the file of Family Court at Bijapur and has

sought to transfer the same to the Family Court at

Bengaluru.

3. Before proceeding with the merits of the

matter, it is to be observed at the outset that the

petitioner has filed a synopsis as regards both the

petitions on 27.08.2018 and has stated that he is

agreeable if the case is transferred “to Bengaluru or any

other neutral place at the discretion of this Hon’ble

Court excluding Bijapur, Kalaburagi or Bagalkot”.
4

4. The petitioner and the respondent had

entered into a wedlock on 29.06.2009 and they had two

children from within the wedlock, Kum.Kavitha now

aged about 8 years and Master Prem now aged about 7

years. The matrimonial relationship started to

deteriorate and the petitioner states that the respondent

and her family members started to threaten the

petitioner. The respondent is said to have left the

matrimonial home along with the second child and is

residing with her parents. It is stated that in the year

2013, as a result of a violent incident, wherein the

petitioner alleges that there was a threat as regards his

life at the instance of the respondent and her family

members and in consequence thereof, a complaint was

registered before the jurisdictional Magistrate Court at

Mangalore in C.C.No.5444/2013 and a charge sheet

had been filed. Copy of the said complaint had been

enclosed as Annexure-A and the learned Magistrate

after presentation of the charge sheet has taken
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cognizance for the offences punishable under Sections

448, 323, 504, 506 r/w Section 34 of IPC against

accused Nos.1 and 2, who are said to have committed

the offences at the instigation of respondent and her

family members.

5. Various litigations that are pending between

the petitioner and the respondent as per the memo

dated 03.07.2017 filed by the counsel for the

respondent for the purpose of reference are extracted as

below: –

Sl. Case filed by petitioner and Petition pending or
No. respondent against each other disposal in Higher
Court
1 M.C.No.37/2015 filed by Petitioner filed
Petitioner against Respondent C.P.No.257/2015
seeking for dissolution of seeking for transfer of
Marriage under Hindu the petition from
Marriage Act on the file of Family Court Judge,
Family Court Judge, Vijayapur to Family
Vijayapur and presently Court, Bengaluru.
stayed.

2 GWC No.10/2014 filed by the Petitioner filed
respondent seeking custody of C.P.No.273/2015
the daughter under Minority seeking for transfer of
and Guardianship Act read the petition from
with Guardian and Ward Act on Family Court Judge,
the file of Family Court Judge, Vijayapur to Family
Vijayapur and presently stayed. Court, Bengaluru.
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3 Criminal Miscellaneous The petitioner had filed
No.320/2014 filed by the Criminal Petition
respondent seeking for No.7536/2015 before
maintenance before the this Hon’ble Court and
Family Court Judge, the same came to be
Vijayapur. The same is (sic) dismissed vide
disposed off and the order dated 19.02.2016
respondent has filed rejecting the request of
Crl.Misc.No.361/2016 which the petitioner for
is pending for consideration. transfer. With
reference to Crl.Misc.

No.361/2016 and no
petition seeking
transfer is filed.

4. Petitioner has filed G WC The petitioner has not
No.14/2016 under Section 10 filed any petition
of GWC Act seeking custody seeking for transfer.
of minor son before Family
Court Judge, Vijayapur.

5. C.C.No.1784/2014 filed by The petitioner has filed
the Respondent against the Criminal Petition
Petitioner before the III Addl. No.7535/2015 and
Civil Judge (Jr.Dn.) Bijapur, seeking for transfer the
Vijayapura. same is pending for
consideration.

6. The petition filed for restitution of conjugal

rights by the husband came to be allowed in

M.C.No.472/2013 and has attained finality but there

has not been any rapprochement between them. A

criminal complaint had been filed in Crime No.10/2010

by the respondent for the offences punishable under
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Section 498A of IPC read with Sections 4 and 6 of

Dowry Prohibition Act, pending in C.C.No.1784/2014

before the III Additional Civil Judge and JMFC at

Bijapur. In the mean while, as is evident from the

details furnished above, petition had been filed by the

respondent in G WC No.10/2014 seeking custody of

the daughter who is with the petitioner and the said

proceedings are pending before the Family Court at

Bijapur. A petition has also been filed seeking

dissolution of marriage under Section 13(1)(ia) and (ib)

of the Hindu Marriage Act in M.C.No.37/2015 which is

also pending before the Family Court at Bijapur.

7. The petitioner submits that trial has

commenced in M.C.No.37/2015 and Crl.Misc.No.

320/2014 and the petitioner had been partially

cross-examined. It is stated that during the pendency

of the said proceedings, the petitioner was assaulted

and abused by the counsel for the respondent in the
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court hall itself in the proceedings in

Crl.Misc.No.320/2014, a complaint in that regard has

been filed against the advocate of the respondent. No

action being taken on the said complaint, the petitioner

has also instituted proceedings before the Karnataka

Bar council against the said advocate for his alleged

misconduct. Copies of the said complaint have been

filed along with a memo dated 29.06.2017 in

C.P.No.257/2015.

8. The petitioner further states that when he

was to adduce evidence in C.C.No.1784/2014 in the

Court of III Addl. Civil Judge JMFC, Bijapur on

16.04.2016 at 8.30 a.m, the same Advocate of the

respondent once again has abused him and threatened

his life and in that regard, a complaint has been lodged

but the jurisdictional police have recorded the said

complaint as NCR No.135/2008/2016.

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9. It is the case of the petitioner that despite

various complaints no action has been taken against

the alleged offenders and that it has become difficult for

him to continue to conduct the proceedings. The

petitioner further submits that the cases are now at a

crucial stage and that there is an increased threat to his

life. It is also to be noticed that the petitioner has

unequivocally asserted that the advocate representing

him has indicated that it would not be possible for him

to represent the petitioner and conduct the cases in

light of the incidents at the Court. The petitioner has

submitted that the respondent’s father is a former

Member of Legislative Assembly, that he has contested

for elections and has produced the affidavit filed before

the Returning Officer. The petitioner states that the

declaration refers to the respondent’s father being

involved in a number of cases which has also created a

heightened threat perception in the mind of the

petitioner.

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10. In the light of the above, the petitioner had

filed W.P.No.42014/2015 before this Court seeking for a

direction to the State Police Authorities to afford

adequate and effective police protection to enable the

petitioner to attend and prosecute and defend the

pending cases before the court at Bijapur. This Court

has disposed of the said Writ Petition, and has observed

that while a direction to afford police protection was not

an appropriate remedy, which is as under:-

“4…….On assessment of threat
perception and even if that be true, the
protection being provided to the petitioner
would not resolve the issue in the
petitioner effectively prosecuting the
matter before the Court below, if he does
not get legal assistance as alleged.

Therefore, if in fact, there is such threat
and there are materials to indicate that
the petitioner is unable to attend the
proceedings before the Court below,
appropriate course for the petitioner is to
seek for the relief of transfer of the
11

petition. If such request is made the same
would be considered based on the
material that would available thereto and
the Court being satisfied in that regard.
Hence, reserving liberty to the petitioner
the petition stands disposed of.”

Copy of the said order is enclosed as Annexure-F. The

petitioner submits that in the light of the observations

of this Court, present petitions have been filed.

11. The respondent, on the other hand, while

opposing the said petition has filed the statement of

objections and has denied the averments and

allegations made in the petition and has also pointed

out that the petitioner has been represented in all of the

proceedings before the Court at Bijapur. The

respondent has asserted that the allegations are

baseless as against the respondent’s father as well as

the respondent’s advocate at Bijapur as also against the

respondent and her family. The respondent states that
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if the petitions were to be allowed and the proceedings

transferred to Bengaluru, it would cause great

hardship, as she would have to travel above 700 Kms to

Bengaluru. Further, to travel alone with a minor male

child to Bengaluru would cause great hardship and

expose the respondent to threats. The respondent has

also relied on the order in Crl.P.No.7536/2015 dated

19.02.2016 wherein this Court has refused to entertain

a petition seeking for transfer of Crl.Misc.No.320/2014

pending on the file of Family Court, Bijapur to the

Family Court at Bengaluru. The Court while disposing

of the petition for transfer has observed that it would

not be appropriate to ask the respondent to come to

Bengaluru from Bijapur to attend the case.

12. On such of the above grounds, the

respondent has opposed the allowing of the petitions.
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13. The point that arises for consideration is:-

“Whether a case has been made
out for transfer of the proceedings as
sought for, warranting exercise of power
under Sec.24 of the Code of Civil
Procedure?”

14. Perused the pleadings and material on

record and heard the submissions of both the counsel.

15. The primary consideration while exercising

power under Section 24 of C.P.C. in the light of the facts

that have been placed before this Court is as to whether

the petitioner’s right of a fair trial warrants transfer of

the proceedings.

16. The following facts need to be kept in mind:-

(a) The petitioner has alleged of an attempt by the

respondent’s counsel to assault him in court, on

11.09.2015. Complaint has been sent to Police

Authorities and complaint has been lodged before the
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Karnataka State Bar Council against the said advocate

representing the respondent (page 16 to 18 of memo).

(b) Complaint against the respondent’s lawyer of

having threatened the petitioner and tried to intimidate

him in the Court premises on 16.04.2016 (page 19-21 of

the memo along with complaint and acknowledgement).

The above material does indicate prima facie there

have been violent altercations in the Court premises

itself.

17. The apprehension of the petitioner as

regards prejudice to a fair trial is also based on a

perception as regards his father-in-law and is based on

the affidavit filed before the Returning Officer, which

reveals his involvement in a number of criminal cases

(memo extracted supra). The petitioner has also averred

that his advocate has expressed his inability to continue

to represent him.

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18. The above facts and circumstances would

indicate that the apprehension of the petitioner as

regards a fair trial cannot be said to be unfounded and

be considered to be an apprehension of a hypersensitive

litigant. The observations of the Apex Court in the case

of MRS. MANEKA SANJAY GANDHI AND ANOTHER v.

MISS. RANI JETHMALANI reported in AIR 1979 SC

468 (at para 5) appear to have been made keeping in

mind the present factual matrix and reads as under:-

“5……. Turbulent conditions putting the
accused’s life in danger or creating chaos
inside the court hall may jettison public
justice. If this vice is peculiar to a particular
place and is persistent the transfer of the case
from that place may become necessary….”.

19. A litigant is to be afforded a congenial

atmosphere of physical security and assurance of

effective legal representation which are concomitants of

the right to a fair trial. The litigant looks up to a fair
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judicial process which involves a level playing field as

regards his opponent. Often the concept of justice as

regards the litigant would be not necessarily the

certainty of a desired result, but a level playing field

with an opportunity to put forth his case as law would

afford. This procedural fairness constitutes a vital

component of the substantive right of a fair trial.

20. The petitioner appears to have an

apprehension of being denied a fair trial, this

apprehension cannot be said to be unfounded or those

of a hypersensitive litigant. On a consideration of the

pleadings and material on record, the apprehension

appears to be based on objective material and

circumstances.

21. The facts of the present case are in

consonance with observations in KULWINDER KAUR

ALIAS KULWINDER GURCHARAN SINGH v. KANDI

FRIENDS EDUCATION TRUST AND OTHERS reported
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in (2008) 3 SCC 659; whereby broad propositions as to

what may constitute grounds for transfer were noted by

the Hon’ble Supreme Court.

22. The frequent threats, if considered,

cumulatively can be said to have created an atmosphere

of insecurity in the petitioner which is sufficient to

vitiate the right to a fair trial. This Court in

W.P.No.42014/2015 has rightly observed that when the

petitioner had sought for police protection to enable him

to pursue legal proceedings, that the appropriate

remedy would be to seek transfer of proceedings, if

permissible under law.

23. The dismissal of Criminal Petition

No.7536/2015 filed by the petitioner seeking for

transfer of proceedings in a petition filed under Section

407 of Cr.P.C. does not tie the hands of this Court to

exercise power vested under Section 24 of C.P.C. as

regards other proceedings between the same parties. In
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the present petitions, the material placed are convincing

enough to warrant exercise power under Section 24 of

C.P.C.

24. Further, in Criminal Petition No.7536/2015

the Court has observed that transferring of proceedings

from Bijapur to Bengaluru would not be appropriate

considering the inconvenience to the respondent.

However, the petitioner in the present case has left it to

this Court to determine the place to where the

proceedings could be transferred other than Vijayapura,

Kalaburagi and Bagalkot. The petitioner is not insisting

on transfer of proceedings to the Court at Bengaluru.

25. However, it also needs to be noted that the

inconvenience that the respondent would be put to by

the transfer of the proceedings cannot eclipse the light

to a fair trial, the consideration of which is paramount

and which right does not admit any compromise or

tinkering.

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26. Accordingly the petitions are allowed. The

proceedings in G WC. No.10/2014 pending on the file

of Family Court at Vijayapura and M.C. No.37/2015

pending on the file of Family Court at Vijayapura are

withdrawn and transferred to be tried by the Family

Court at Hubballi. The parties are directed to appear

before the Family Court, Hubballi on 28.11.2018.

Sd/-

JUDGE

RS/VGR

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