THE HON’BLE SRI JUSTICE G.CHANDRAIAH TR.CMP.NOS.18 AND 63 OF 2009 AND TR.CRL.P.NO.110 OF 2009 COMMON ORDER Heard both the counsel. 2. The parties in these petitions are wife and husband. The husband filed Tr.CMP.No.63 of 2009 and Tr.CRL.P.No.110 of 2009, seeking transfer of O.P.No.706 of 2008 and M.C.No.194 of 2008, filed by the wife on the file of Family Court, Vijayawada seeking restitution of conjugal rights and maintenance, respectively, to the Family Court at Hyderabad for being tried along with O.P.No.787 of 2008, filed by him for divorce. 3. On the other hand, the wife filed Tr.CMP.No.18 of 2009 for transferring O.P.No.787 of 2008 filed by the husband on the file of Family Court, Hyderabad, for divorce, to the Family Court at Vijayawada for being tried along with O.P.No.706 of 2008 and M.C.No.194 of 2008. 4. The case of the wife, as stated in the affidavit filed in support of the petition in Tr.C.MP.No.18 of 2009, is that, their marriage took place on 30.5.1996 at Sri Venkateshwara Kalyana Mandapam, Himayatagar, Hyderabad, as per Hindu traditions and out of their wedlock they were blessed with two daughters, who are now aged about 11 and 9 years respectively. At the time of marriage, her husband was undergoing training as IPS Probationer at National Police Academy, Hyderabad and after completion, he was posted as Assistant Superintendent of Police, Sikkim and soon after the marriage, she joined her husband. It is alleged that her husband and in-laws harassed her for additional dowry. In the affidavit, she stated the harassment meted by her at the hands of her husband and her in-laws. However, they are not being referred to, since they are to be considered in the main petitions filed by the parties. However, it is alleged that unable to bear the harassment, the petitioner for forced to leave the matrimonial house and return to her parent’s house at Vijayawada. It is stated that the petitioner filed private complaint under Section 498-A and Section 4 of the Dowry Prohibition Act before the Hon’ble XXII Metropolitan Magistrate, Hyderabad and after investigation charge sheet was filed and it was numbered as CC.No.222/2003 and she also filed O.S.No.54/2003 on the file of the Family Court, Hyderabad claiming maintenance and further she also filed O.P.No.304/2003 on the file of the Family Court, Hyderabad under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. It is stated that as she had returned to Vijayawada, she filed petitions before this court in Tr.CMP.Nos.398 and 460 of 2003 seeking transfer of O.S.No.54/2003 and O.P.No.304/2003 from the Family Court at Hyderbad to Family Court at Vijayawada. But, owing to compromise, and bona fidely believing that her husband realized his matrimonial duties towards her and children, she withdrew the above petitions and she again joined her husband at Sikkin in June, 2006, but the case of the petitioner is that again her husband started to harass her and in the meanwhile, he was transferred to Mumbai on 11.2.2008 as Superintendent of Police, CBI and at Mumbai, it is alleged that troubles to the petitioner became multifold at the instance of her sister-in-law and in-laws, who are residing at Mumbai. In the affidavit, she further stated the incidents how the respondent neglected her and her children and subjected them to harassment and the eventual receipt of divorce notice from the respondent and how she was forced to leave Mumbai and reach her parent’s house at Vijayawada on 25.7.2008. To the divorce notice, she got issued reply notice dated 26.8.2008 requesting the respondent to receive them back, but her request remained futile. The case of the petitioner is that the respondent has neglected her and her children and they were abandoned since 5.6.2008 and as she has no source of income and as she is interested in continuing her marital life, she filed M.C.No.194/2008 for maintenance and O.P.No.706/2008 claiming restitution of conjugal rights. On the ground of inconvenience to her and children as she is residing at Vijayawada and her children are studying at Vijayawada and as her father is aged about 71 years and as there is no male assistance for her to travel all the way from Vijayawada to Hyderabad, she filed the present petition in Tr.C.M.P.No.18/2009 seeking transfer of O.P.No.787/2008 filed by her husband on the file of Family Court at Hyderabad to the Family Court at Vijayawada for being tried along with M.C.No.194/2008 and O.P.No.706/2008. 5. On the other hand, the case of the husband, while denying the allegations of harassment made by his wife, is that his wife harassed him and in the affidavit filed in support of the transfer petition filed by him in Tr.C.M.P.No. 63/2009, he stated different incidents leading to disputes between the parties and the earlier petitions filed by his wife and the circumstances leading to the withdrawal of those case. He further stated that presently he is posted as DIG at Sikkim and that it is very difficult for him to come over from Sikkim to attend the cases at Vijayawada, and that he is willing to bear the expenses for travel and stay of the petitioner if the cases are transferred from Vijayawada to Hyderabad. With these averments, he sought for transfer of cases from Vijayawada to Hyderabad. 6. The learned counsel appearing for the petitioner – wife vehemently contended that the respondent – husband subjected the petitioner to harassment and unable to bear the harassment she was forced to leave the matrimonial company and reside with her parents at Vijayawada. He stated that there is threat to the life of the petitioner, if the cases are transferred from Vijayawada to Hyderabad, as the respondent - husband is a top official in police department and further, the children of the petitioner are studying at Vijayawada and the father of the petitioner, who is a retired I.A.S. officer, is also aged about 71 years and he cannot accompany the petitioner to Hyderabad on each date of hearing and, therefore, on the grounds of convenience to the wife and minor children, he sought the transfer of case filed by the husband to the Family Court at Vijayawada. In support of his contention that the convenience of the wife and minor children shall be considered, he relied on the judgment of a learned single Judge of this court reported in M.AISWARYA v. P.GOPI KRISHNA [1]. To the suggestion made by the counsel for the respondent – husband that another alternative forum, convenient to both the parties, may be considered by this court, the learned counsel relying the judgment of the Apex Court in AMITA SHAH v. VIRENDER LAL SHAH[2] submitted that the petitioner cannot travel to another alternative place i.e., at Visakhapatnam and it will be inconvenient to her and her minor children and therefore, sought to transfer the case filed by the husband to Vijayawada. 7. Refuting to the allegations made by the wife against the husband and the ground of convenience to the wife, the learned counsel appearing for the respondent – husband, submitted that the respondent is an IPS officer posted at Sikkim, which is very sensitive area and he cannot get leaves frequently and at the cost of law and order at Sikkim, he will have to travel all the way from Skiim and if the cases are tried at Hyderabad, there are facilities of train and flight and further he is ready to bear the traveling and boarding expenses of his wife. He further stated that the wife earlier filed petitions at Hyderabad for maintenance and for restitution of conjugal rights and she also filed transfer petitions and the petitions filed for maintenance and for restitution of conjugal rights were withdrawn and the transfer petitions were dismissed and when she herself filed petitions at Hyderabad at the earlier point of time, she cannot now seek transfer of cases from Hyderabad to Vijayawada on the grounds of inconvenience to her. He further contended that the petitions filed by the wife were subsequent to the petition filed by the husband for divorce and, therefore, as per Section 21 of Hindu Marriage Act, the later petitions have to be transferred to the court where earlier petition was filed. Relying on the judgment of the Apex Court reported in ANINDITA DAS v. SRIJITDAS[3], he contended that convenience of the wife cannot be the sole criterion for transferring of the cases and that the Apex Court in the said judgment, based on the similar grounds raised in the present petition i.e., convenience to the wife and children, held that leniency to ladies shown by the court in transfer matters is often misused, and that as there are grand parents to look after the children therein, held that no ground are made out to transfer and accordingly dismissed the transfer petition filed by the wife. Therefore, the learned counsel sought to dismiss the present transfer petition filed by the wife and allow the petitions filed by the husband. He alternative submitted that in case this court is not inclined to accept the grounds raised by the husband, it may consider for transferring the petitions to Visakhapatnam, which will be convenient to both the parties. 8. In order to resolve the controversy it is necessary to note few admitted facts. 9. The marriage between the parties took place on 30.5.1996 at Sri Venkateshwara Kalyana Mandapam, Himayatnagar, Hyderabad and they were blessed with two children. Soon after the marriage, disputes arose and the wife is residing at Vijayawada with her minor children. Though in both the petitions filed by the parties they leveled allegations against each other with regard to harassment, they are not relevant in this transfer petitions and as noted above, that is the subject matter to be considered in the respective petitions filed by the parties and this court, in the present petitions, is only concerned with the grounds raised pertaining to the transfer of cases. Now the fact remains, that the wife is residing at Vijayawada with her parents and the minor children are studying at Vijayawada. The petitioner – wife also earlier filed petitions seeking maintenance and for restitution of conjugal rights at Hyderabad and she also filed transfer petitions before this court and they were dismissed as withdrawn, owing to the compromise between the parties. Therefore, the earlier dismissal of the petitions, will have no bearing on the present transfer petitions, as the circumstances have changed, since the petitioner is alleged to have joined her husband again and as the parties could not reach to any settlement and lead happy marital life, the present petitions came to be filed and, therefore, the earlier petitions cannot be taken to say that the present petitions seeking for transfer are not maintainable. However, the circumstances as narrated by both the parties, lead the filing of the present petitions. 10. In matrimonial proceedings relating to transfer of cases, this court as well as Apex Court in catena of judgments have held that convenience of the wife and minor children, shall be of paramount consideration. In the present case, the wife and children are staying at Vijayawada and the children are also studying at Vijayawada and as per the case of the petitioner, her father is aged about 71 years and is not in a position to accompany her to Hyderabad. Further, it is to be noticed that the respondent/husband is not staying at Hyderabad, where he filed petition for divorce and he is working at Sikkim and here the contention of the counsel for the petitioner is that the husband has to travel from Sikkim to Hyderabad via Vijayawada. However, the learned counsel for the respondent disputed this stating that Hyderabad is well connected by flight and train facilities and the travel by train is subject to availability of reservation. However, these considerations cannot overweigh the convenience of wife and minor children. Therefore, in these circumstances, I am of the view that considering the convenience of the wife and minor children, the transfer petition filed by the wife, needs to be allowed. 11. In the judgment of the Apex Court cited 3 supra, the facts are different and in the said judgment, though the Apex court held that convenience of the wife cannot be the sole criteria, in transfer petitions, it has categorically held that each case has to be considered on its own merits. In the present case, as already noted above, the husband is residing at Sikkim and not at Hyderabad where he filed petition and further, the wife and the minor children are staying at Vijayawada, where wife filed petitions for maintenance and for restitution of conjugal rights and her father is aged who is not in a position to company her to Hyderabad. Therefore, the said judgment of the Apex Court cannot be made applicable to the facts of the present case. 12. The other contention of the counsel for the petitioner is that as per Section 21-A of the Hindu Marriage Act, 1955 the petition which is filed in later point of time shall be transferred to the place where the earlier petition is filed and in this case, after the filing of the divorce petition by the husband at Hyderabad, the wife filed the petitions for maintenance and for restitution of conjugal rights at Vijayawada and, therefore the petitions filed by wife at Vijayawada have to be transferred to Hyderabad. 13. It is to be noticed that the present petitions seeking transfer were filed under Section 24 of C.P.C. A learned single Judge of this Court in S.DURGA PRASAD v. S.RAJA RAMANI[4] held that the powers of the High Court for transfer under Section 24 of C.P.C. are wide and not controlled by Section 21-A of the Act and considering the facts and circumstances therein where both spouses filed petitions seeking transfer, held that convenience of wife be looked at and wife’s petition need not be transferred under Section 21-A of the Act on the ground that it was filed later in point of time. Therefore, the contention of the counsel for the respondent – husband in this regard, cannot be countenanced. 14. With regard to alternative submission of the counsel for the respondent – husband that any other place i.e., Visakhapatnam may be considered for transferring of the cases, as already noted above, the counsel appearing for the petitioner – wife vehemently resisted the said submission contending that it will be inconvenient to her and the minor children and hence the petitioner is not agreeable to the said suggestion. As noted above the Apex Court and this Court in catena of judgments held that convenience of wife and minor children shall be given paramount consideration is matrimonial proceedings relating to transfer. In the present case on the ground of inconvenience as she is unable to travel to Hyderabad she is seeking transfer. The same grounds will apply even in case of other place. Therefore, the submission in this regard cannot be considered. 15. Having regard to the above facts and circumstances and considering the convenience of the wife and that of minor children, I pass the order as under: “Tr.CMP.No.18 of 2009 filed by the wife is allowed and consequently O.P.No.787 of 2008 filed by the husband on the file of Family Court, Hyderabad, for divorce, is transferred to the Family Court at Vijayawada for being tried along with O.P.No.706 of 2008 and M.C.No.194 of 2008. Tr.CMP.No.63 of 2009 and Tr.CRL.P.No.110 of 2009 filed by the husband are dismissed.” 16. In the circumstances of the case, there shall be no order as to costs. AVS -------------------------------- 19-02-2010 [1] 2009(3) ALD 144 [2] (2003)10 SCC 609 [3] (2006)9 SCC 197 [4] 2003(1) ALT 332