The presence of a non-party respondent in the original case rendered the transfer petition not maintainable.

JUDGMENT

A.V. Ravindra Babu, J. - The Transfer Civil Miscellaneous Petition is filed by the petitioner, who is the first respondent in FCOP No.1211 of 2021, on the file of Family Court Judge, Vijayawada, Krishna District, with a prayer to transfer the same to the Court of Senior Civil Judge, Rajam, Srikakulam District.

2. The contention of the petitioner, in brief, is that the respondent is her husband. Their marriage was performed on 24.02.2008 as per Hindu tradition and caste customs at Chuttugunta, Vijayawada, Krishna District. She gave birth to first son by name Sharat Eswar in the year 2009 and she gave birth to second son by name Sai Aditya in the year 2011. The petitioner was subjected to physical and mental harassment with a demand of additional dowry. The respondent used to suspect her character. When the respondent fell-ill in the year 2009, the petitioner borrowed the amount and took care of him. In the year, 2021 she was necked out. Surprisingly, the respondent filed FCOP No.1211 of 2021 before the Family Court Judge, Vijayawada, seeking to dissolve the marriage on the ground of cruelty. The petitioner lodged a report in Crime No.115 of 2022 under Section 498-A r/w 34 of Indian Penal Code ('I.P.C.' for short). She along with her second son filed M.C.No.12 of 2022 against the respondent before Judicial Magistrate of First Class, Rajam, for maintenance. She also filed HMOP No.42 of 2022 before the Senior Civil Judge, Rajam under Section 9 of Hindu Marriage Act, for restitution of conjugal rights. The petitioner along with her second son is residing at Kondempeta Village, Rajam Mandal, Srikakulam District, which is at a distance of 490 kilometers from Vijayawada and it is very difficult for her to travel to Vijayawada. Hence, the petition.

3. The respondent got filed a counter raising various contentions and by denying the allegations leveled against him and resisting the prayer. He would contend that the Family Court Act is a beneficial legislation and it is a special Court and the prayer is not acceptable.

4. Now, in deciding the Transfer Civil Miscellaneous Petition, the simple question for falls for consideration is whether the petitioner is entitled for transfer of FCOP No.1211 of 2021 from the file of Family Court Judge, Vijayawada to the Court of Senior Civil Judge, Rajam?

POINT:-

5. Without looking into the merits of the contentions advanced insofar as the relief sought for in this petition, but the very petition is not maintainable on factual aspects in view of the following reasons:

As seen from the copy of HMOP No.42 of 2022, on the file of Senior Civil Judge, Rajam, there are two respondents. One is Baditam Puspha, who is no other than the petitioner herein and the second respondent is one Sammingi Durga Rao. The allegation in FCOP No.1211 of 2021, on the file of Family Court Judge, Vijayawada is that the first respondent is Baditam Puspha i.e., the wife of the petitioner therein, developed illicit intimacy with Sammingi Durga Rao, who is shown as second respondent. The copy of FCOP No.1211 of 2021 filed by the petitioner along with the TRCMP reveals the same. So, in FCOP No.1211 of 2021 second respondent is there viz., Sammingi Durga Rao. Sammingi Durga Rao is not at all shown as party to this Transfer Civil Miscellaneous Petition.

6. So, the second respondent in FCOP No.1211 of 2021 cannot be condemned as unheard in this Tr.C.M.P.No.252 of 2022. No adverse order can be passed against him without affording a reasonable opportunity for hearing. This Court is not in a position to give a reasonable opportunity to him, as he is not a party to this Transfer Civil Miscellaneous Petition. So, any order granting relief of transfer would adversely affect to him, as that would amounts to passing an order without affording an opportunity of hearing. So, it is very clear that this petition must fail, as the second respondent in FCOP No.1211 of 2021 is not shown as a party to this Transfer Civil Miscellaneous Petition.

7. Henc