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1996 Supreme(AP) 697
Andhra Pradesh High Court
Judges : S.DASARADHA RAMA REDDY
D.Appa Rao - Appellant
Versus
D.Swarnalatha - Respondent
Decided On : 08-05-96
The convenience of the parties and the interest of the minor child are important factors to be considered when deciding a transfer petition under Section 24 of the Code of Civil Procedure.
Headnote:
GUARDIANSHIP AND WARDS ACT - SECTION 9 - TRANSFER OF CASE - JURISDICTION - CONVENIENCE OF PARTIES - INTEREST OF MINOR CHILD - SECTION 10 C. P. C. - STAY OF SUBSEQUENT SUIT - SECTION 21-A OF THE HINDU MARRIAGE ACT - TRANSFER OF SECOND PETITION FOR SAME RELIEF.
Fact of the Case:
The wife filed a petition in the Family Court, Hyderabad, for the guardianship of her 9-year-old daughter, while the husband filed a petition in the Principal District Judge, Rajahmundry, for the custody of the daughter. The wife sought the transfer of the Rajahmundry case to Hyderabad, while the husband sought the transfer of the Hyderabad case to Rajahmundry.
Finding of the Court:
The court held that the Family Court, Hyderabad, had jurisdiction to entertain the wife's petition since the minor daughter was ordinarily residing in Hyderabad on the date of filing the petition. The court also held that the husband's petition in Rajahmundry was liable to be transferred to Hyderabad since it was filed subsequently and for the same relief.
Issues: 1. Whether the Family Court, Hyderabad, had jurisdiction to entertain the wife's petition. 2. Whether the husband's petition in Rajahmundry was liable to be transferred to Hyderabad.
Ratio Decidendi: 1. Under Section 9 of the Guardians and Wards Act, the Family Court at Hyderabad had jurisdiction to entertain the O. P. filed by the wife since the minor daughter was ordinarily residing at Hyderabad as on the date of filing of the O. P. 2. Under Section 10 C. P. C., the subsequent suit filed for the very same relief has to be stayed. Even assuming that Section 10 applies to the suits but not to the O. Ps., the object underlying Section 10 can be taken aid of even in considering the petitions filed under Guardians and Wards Act.
Final Decision: The court allowed the wife's transfer petition and dismissed the husband's transfer petition. The case in Rajahmundry was transferred to the Family Court, Hyderabad.
( 2 ) THE petitioner who is the wife of the respondent, a leading advocate at rajahmundry, filed O. P. 450/96 on 13-5-96 in Family Court, Hyderabad for declaration of guardianship of 9 years old daughter. Respondent has also filed o. P. 208 /96 on the file of the Principal Distict Judge, Rajahmundry on 11-6-1996 for the custody of the daughter. The wife filed the petition seeking transfer of o. P. filed in Rajahmundry Court to the Hyderabad Court while the husband seeks transfer of O. P. from Hyderabad Court to Rajahmundry Court, in his tr. C. M. P. In the affidavit filed in support of the petition wife states that she came along with minor daughter to Hyderabad on 8-5-1996 and got the daughter admitted in a Hyderabad school and staying with her parents at hyderabad and that the respondent who is a leading advocate at Rajahmundry is proclaiming that no one can appear against him in Rajahmundry. It is also alleged that she has no security at Rajahmundry and cannot travel from hyderabad to Rajahmundry along with her daughter. It is also contended that the O. P. filed by her being earlier one the O. P. filed at Rajahmundry may be transferred to Hyderabad Court.
( 3 ) IN the Counter, the husband says that the petitioner along with her daughter came to Hyderabad temporarily for the purpose of training as probationary Dy. Thasildar for a period of 45 days only in the Institute of administration, Jubilee Hills, Hyderabad, and that the Family Court at hyderabad has no jurisdiction to entertain the petition. He also denies the allegation that the daughter was admitted in Hyderabad school. It is also alleged that the wife is now undergoing training at Kakinada as a Probationary deputy Tahasildar. The allegation that the respondent is proclaiming that nobody can appear against him at Rajahmundry Court is stoutly denied. It is also alleged that it is not in the interests of child to reside with the father of the petitioner who is involved in a number of a A. C. B. cases.
( 4 ) FROM the above pleadings, the following are the undisputed facts: the minor daughter is staying at Hyderabad in the house of the petitioner s father. Both the O. Ps. are filed for the same relief and the petition filed by the wife is earlier in point of time.
( 5 ) SMT. K. Malleswari, learned counsel for the petitioner contends that under section 9 of Guardians and Wards Act the Family Court at Hyderabad has jurisdiction to entertain the O. P. filed by the wife since the minor daughter was ordinarily residing at Hyderabad as on the date of filing of the O. P. It is further ntended that the husband has filed the O. P. in Rajahmundry Court for the me relief as a counter blast, only to harass her and that it will be difficult and convenient for to travel to Rajahmundry along with her daughter to prosecute o. P.
( 6 ) SRI C. V. Mohan Reddy learned counsel for the respondent contends that the amity Court Hyderabad has no jurisdiction as the minor daughter was only emporarily statying at Hyderabad which does not amount to ordinarily esiding and relies on: (1) Sarada Nayar vs. Vayankara Amma (2) Bhagya laxmi vs. K. Narayana Rao (3) In Re. Dr. Giovanni Marco Muzzu (4) Konduparthi Venkateswarlu vs. Ramavarapu Vinoja Nandam (5) Girija Kumari vs. Vijayanandam
( 7 ) IT is not necessary for the purpose of this case to decide whether the hyderabad Court has jurisdiction to entertain the O. P. filed by the wife. As contended by Smt. Malleswari, relying on Commissioner of Expenditure Tax vs. S. R. Y. S ivaram Prasad Bahadur the question of jurisdiction of either Court is i not relevant for the purpose Section24ofc. P. C which in terms is very wide. The fact that the minor daughter is now staying at Hyderabad is not denied by the respondent though the a
