This transfer C.M.P., under Section 24 CPC, has been filed by the respondent in G.O.P.No.443 of 2009 on the file of the District Judge, Family Court, at Visakhapatnam to transfer the said O.P to the file of Family Court, at Hyderabad.

2. The petitioner and the respondent are wife and husband. They got married on 28.7.1998. They have a male child out of the wedlock on 06.12.2001. Their marriage is a love marriage and they led happy marital life till the year 2005. Some disputes cropped up between them in the year 2005 and thereupon, they fell apart. They filed O.P.No.1064 of 2007 under Section 13-B of the Hindu Marriage Act, 1955 seeking divorce on mutual consent before the Family Court, Visakhapatnam. The marriage between them came to be dissolved with effect from 30.06.2008. The wife along with the child has been staying at Hyderabad.

3. The husband filed G.O.P.No.443 of 2009 under Section 7(1)(a) of the Guardians and Wards Act to appoint him as guardian of the minor son. Initially, an ex parte order came to be passed in the said O.P. The wife filed C.M.A.No.936 of 2009 assailing the order dated 17.7.2009 passed in G.O.P.No.443 of 2009. The said C.M.A came to be allowed by a Division Bench of this Court and the matter came to be remanded to the Family Court, Visakhapatnam to pass appropriate orders on merits, by judgment dated 03.09.2009.

The relevant portion of the judgment passed in C.M.A.No.936 of 2009 read as hereunder:-

“Having regard to the fact that no notice had been served on the appellant herein before passing the order impugned in this appeal, without adverting to merits or otherwise of the contentions raised herein and at the option of both the counsel, the appeal is allowed and the matter is remanded back to the Court below for passing orders afresh within a period of six months from the date of receipt of a copy of this Judgment. It is needless to mention that the court below shall afford reasonable opportunity to both the parties to lead their evidence. No order as to costs.”

4. Thereafter, the wife filed the instant application seeking transfer of G.O.P.No.443 of 2009 from the file of Family Court, Visakhapatnam to the file of Family Court, Hyderabad.

Paragraph 7 of the affidavit filed in support of the petition needs to be noted and it is thus:-

“I submit that even taken into consideration the allegations in the petition GOP 443/2009, the ordinary residence of the minor child is at Hyderabad. So, the petition filed by the respondent at Visakhapatnam is not maintainable in view of Section 9 of Guardians and Wards Act, 1890. I further submit that I am a working woman at Hyderabad and it is very difficult for me to get leave so as to attend the Court at Visakhapatnam. So, it is expedient in the interest of justice to transfer GOP 443/2009 on the file of the Family Court, Visakhapatnam to the Family Court, Hyderabad for its enquiry and Trial.”

5. Notice before admission came to be ordered on 19.11.2009. The respondent entered appearance through a counsel. No counter has been filed resisting the application.

6. Heard learned counsel appearing for the parties.

7. Learned counsel appearing for the petitioner submits that the petitioner is a woman and she is working at Hyderabad and she finds it difficult to go all the way from Hyderabad to Visakhapatnam to take the proceedings in O.P. filed by the respondent-husband seeking custody of the minor child. A further submission has been made that the O.P filed by the husband at Family Court, Visakhapatnam is not maintainable since the O.P seeking custody of the child is required to be filed at the place of the ordinary residence of the minor child.

8. In support his submissions, reliance has been placed on the decisions of this Court in D. Appa Rao v. D. Swarnalatha (1) 1996 (2) An.W.R.277, Harihar Pershad Jaiswal v. Suresh Jaiswal and others (2) 1977 ALT 373, N.T. Raju v. N.Jyotsna (3) 1985 (2) 187 (D.B.) and the decision of Punjab and Haryana High Court in Sumi