K.L. DIVYA Vs. M.K. SHASHIKANTH

JUDGEMENT

(1.) This petition is filed under Section 24 of the Code of Civil Procedure seeking transfer of the matrimonial case in M.C.No.641/2018 from the III Additional Principal Judge, Family Court at Mysuru to the Court of the Senior Civil Judge and CJM at Mandya.

(2.) The admitted facts are that the marriage between the parties was solemnized on 30.09.2009. The petitioner gave birth to a female child on 30.08.2010. During the course of the arguments, it was also submitted that the marriage of the petitioner to the respondent is a second marriage, while the respondent had earlier married the petitioner's sister and the petitioner's sister committed suicide. It is submitted by the learned counsel for the petitioner that the respondent started harassing the petitioner and she came to know that the respondent married the petitioner only to avoid payment of Rs.40,00,000/- which was agreed to given by the respondent at the time of compounding the criminal case. At this stage, the learned counsel for the respondent submits that the parties have been living separately from September, 2018. The respondenthusband has filed a matrimonial case in M.C.No.641/2018 in September, 2018 at Mysuru seeking a decree of divorce. The learned counsel for the petitioner submits that the petitioner also filed a matrimonial case in M.C.No.149/2019 before the Court at Mandya seeking restitution of conjugal rights. It is further submitted that the respondenthusband has been attending the Court proceedings at Mandya and therefore the matrimonial petition filed by the respondent at Mysuru should be transferred to the Court at Mandya, in order to enable both the matters to be heard together.

(3.) The learned counsel for the respondent submits that the contention of the petitioner that she is unable to travel to Mysuru since she has shifted to Mandya and she has to take care of her child, is incorrect in view of the certain events that had occurred after the matrimonial case was filed by the respondent. In this regard, learned counsel for the respondent has filed a memo dated 07.02.2020 along with copies of certain documents, which may be relevant for consideration. It is submitted by the learned counsel for the respondent that the averments of the petitioner is proved false in view of the fact that the petitioner has filed a Criminal Miscellaneous Petition in Crl.Misc.No.772/2019 seeking maintenance under Section 125 of Cr.P.C., on 17.10.2019 at Mysuru. Nevertheless, on 18.11.2019, a memo was filed by the petitioner in Crl.Misc.No.772/2019 stating that the matter was settled out of the Court and therefore a prayer was made before that Court to dismiss the petition as not pressed. However, it is submitted that prior to filing of such a memo, on 14.11.2019, the petitioner has filed M.C.No.149/2019 before the Court at Mandya seeking restitution of conjugal rights. The learned counsel for the respondent therefore submits that the petitioner has not approached this Court with clean hands. The petitioner has deliberately made attempts to prepare grounds for seeking transfer of the matrimonial case filed by the respondent having failed to prosecute the case before the Court at Mysuru. It is submitted by the learned counsel for the respondent that inspite of several opportunities being given to the petitioner, the petitioner did not cross-examine the respondent and lead evidence in M.C.No.641/2018. However, subsequently, on an application being made by the petitioner, opportunity was once again given to the petitioner to crossexamine the husband but, the petitioner once again failed to lead evidence for herself by entering the witness box. Since, several opportunities were given to the petitioner and since the petitioner failed to lead evidence, the matter is now posted for arguments. The learned counsel therefore submits that at this stage if the matrimonial case is transferred, it will cause great injustice and it would amount to derailment of proceedings of justice.