Munagala Deepthi v. Mungagal Srinivasa Reddy

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY TRANSFER C.M.P.No. 33 OF 2018 ORDER:

This transfer civil miscellaneous petition under Section 24 of the Code of Civil Procedure (for short, 'C.P.C.') is filed to withdraw H.M.O.P.No.66 of 2017 pending on the file of Senior Civil Judge, Nizamabad and transfer the same to the Judge, Family Court, Vijayawada to decide along with M.C.No.321 of 2016. Wife filed this application. It is the contention of the petitioner that she being lady staying with her parents at Vijayawada unable to undertake journey covering distance of more than 400 kms between Vijayawada and Nizamabad and that she has no means to maintain herself and facing financial difficulty to meet the expenses for traveling and other incidental expenses. It is also contended that M.C.No.321 of 2016 filed under Section 125 Cr.P.

C is pending before the Judge, Family Court, Vijayawada claiming maintenance as not having independent source of income and also contended that she lodged report with the police for the offence punishable under Section 498-A IPC, which is pending at crime stage. In view of pendency of other cases and inability, she sought for withdrawal and transfer of HMOP to decide along with M.C.No.321 of 2016 Undisputedly, HMOP is filed under Section 13(ia) and (ib) of the Hindu Marriage Act for divorce before Senior Civil Judge, Nizamabad, whereas M.C. is filed under Section 125 Cr.P.C before the Judge, Family Court, Vijayawada.

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procedure contemplated under the Family Courts Act. The petitioner is not required to appear before the Court on every date of adjournment, unlike matters pending before the Family Court and trial of cases are governed by Family Courts Act. Moreover, if a direction is issued to the Senior Civil Judge, Nizamabad not to insist the petitioner's appearance before the Court on every date of adjournment as long as she is represented by her counsel except on the dates when her personal appearance is required for reconciliation etc. to over come the difficulty expressed by her and such direction would preclude the Senior Civil Judge to pass any order in accordance with law, in the event of failure of her counsel to appear and represent the matter. Therefore, issuing such direction is suffice for dispense with the petitioner's appearance.

In addition to that, in case the petitioner wishes to be examined as witness, she may seek appointment of advocate commissioner under Order XXVI Rule 1 read with Order XVIII Rule 4(2) C.P.C. In the event of filing such application, the Senior Civil Judge may consider the said request in accordance with law.

In view of my foregoing discussion, I find that there are no grounds to withdraw and transfer HMOP. However, the Senior Civil Judge is directed not to insist appearance of the petitioner on every date of adjournment, except her personal appearance is required for reconciliation or for any other purpose under the Act, as long as she being represented by her counsel and in case, when she is required to appear before the Court, the respondent be directed to pay traveling and other incidental expenses not only to the petitioner, but also to the person who is accompany her to attend the Court in connection with

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HMOP No.66 of 2017 and also consider the request, if any, made, by filing application for appointment of advocate commissioner to record her cross examination in accordance with law.

With the above observation, the Tr.C.M.P. is disposed of. There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand dismissed in consequence.

___________________________________ M.SATYANARAYANA MURTHY, J.

Date: 30.01.2018 kvrm