ORDER
P.S. Narayana, J.
1. This Tr.CMP is filed under Section 24 of the Code of Civil Procedure praying for transfer of O.P. No. 1347 of 2008 pending on the file of the Family Court, Visakhapatnam to the Family Court, Hyderabad and to pass such other suitable orders.
2. The respondent filed a counter affidavit in detail resisting the Tr.CMP.
3. Heard Smt. A. Jayanthi and Sri G. Rama Gopal, learned Counsel representing the parties.
4. The learned Counsel for the petitioner had taken this Court through the contents of the affidavit filed in support of the Tr.CMP and would maintain that in the facts and circumstances of the case, it is a fit matter to be ordered. She also placed reliance on certain decisions.
5. On the contrary, the learned Counsel for the respondent had taken this Court through the counter affidavit filed by the respondent and would maintain that in the light of the facts and circumstances, it is not just and proper to order the Tr.CMP, more so when the respondent is 73 years old. He also would maintain that at this advanced age, the petitioner and the respondent are fighting this unfortunate litigation and in case of this nature, it would be just and proper if the parties arrive at an amicable settlement.
6. The Tr.CMP is filed by the petitioner-wife against the respondent-husband. It is stated that the respondent filed O.P. No. 1347 of 2008 on the file of the Family Court, Visakhapatnam against the petitioner under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and the details relating to the properties also have been specified. It is also stated that the respondent has been managing the properties from the beginning and he engaged M/s. Jayaraman and Company, Chartered Accountants on behalf of all the family members including the petitioner and all the books of accounts, records, and income tax papers are with the aforesaid company. It is further stated that the entire income derived from the petitioner's properties was also appropriated by the respondent and he did not give any amount for her maintenance much less the income derived from her properties. The petitioner and the respondent stayed at Banjara Hills, Hyderabad from 1993 to 1994 and then they shifted to Bangalore in the year 1994 and the respondent worked as General Manager in Khiviraj Motors, Bangalore and they stayed there till 2000. Then they came to Hyderabad in the year 2000 and stayed in their daughter's house till 2003 and later shifted to the rental premises at Ashmitha Complex, Madhapur, Hyderabad and stayed there till 2004. Suddenly, the respondent left the petitioner alone in the above mentioned rental premises and since three years the respondent started living with a muslim woman namely Asha and at her instance started acting against interest of the family. It is also stated that the respondent appointed Mr. Jattumal Chordia as caretaker to manage the properties of the family members including the petitioner and the caretaker is also acting adverse to the interests of the petitioner in collusion with the respondent. The respondent filed a suit No. 707 of 2007 on the file of the III Addl. Chief Judge, City Civil Court, Hyderabad for partition against the petitioner and her children with all false allegations. The respondent sold away the property at Bangalore acquired with joint family funds for Rs. 25 lakhs and is misappropriating the money without looking after the welfare of the family. The Family Court, Visakhapatnam is not having jurisdiction to try the O.P. because both the petitioner and the respondent lastly never resided at Visakhapatnam.
It is further stated that the petitioner is now aged about 67 years and has been suffering from diabetes, Hypertension, Cardiac problem and also ankle sprain since two weeks. The respondent is not giving any money for her maintenance and for treatment. She got issued a legal notice to the caretaker to account for her money and hand over the records including bank accounts. The respondent filed the above said O.P. at this age only to harass the petitioner. At this advanced age, with all the aforementioned ailments, the petitioner cannot travel alone and the respondent is frequently coming to Hyderabad to contest the suit O.S.707 of 2007 before the III Additional Chief Judge, City Civil Court, Hyderabad and he can as well attend the Family Court, City Civil Court, Hyderabad if the present O.P.1347 of 2008 on the file of the Family Court, Visakhapatnam is transferred to the Family Court, City Civil Court, Hyderabad.
7. The respondent also filed a counter affidavit in detail. It is averred that the petitioner having lived with him for about 45 years, it is most uncharitable on her part to leave him alone to his fate at this age and staying away from him. The allegation that the petitioner was presented valuable gifts and also settled immovable properties by her father at the time of marriage is not totally correct. The allegations with respect to the properties and about their management, are not relevant for the purpose of present petition. The property at Bangalore is his self-acquired property which was acquired with his retirement funds.
It is also stated that the respondent retired from service on 1.7.1993 at Hyderabad. He worked as a member of A.P. State Consumer Disputes Redressal Commission at Hyderabad from July 1993 to August 1994. Thereafter, in December, 1994 he shifted to Bangalore and worked as General Manager in Kiviraj Motors, Bangalore and stayed there till 1998. During August 1998 he came over to Hyderabad and underwent an operation to his eye at L.V. Prasad Eye Hospital on 28.8.1998 and subsequently his second eye was operated in the year 2001. During the period of his stay at Hyderabad, he was residing with his wife and son at Madhapur, Hyderabad and he was having a telephone facility in his name. Himself and the petitioner lived together till May 2003 at Hyderabad and in the month of June 2003 they shifted to Visakhapatnam as the climatic conditions are conducive to the health of the petitioner. The respondent did not terminate the telephone facility standing in his name in view of the fact that his son was residing there and utilizing the telephone facility. Himself and the petitioner lived happily at Visakhapatnam for quite some time and thereafter for the reasons known to the petitioner and at the instance of their daughter, the petitioner left Visakhapatnam and continued to live with their daughter at Hyderabad. He has made several personal requests over phone and also in person, but all his efforts are found futile. Later on, his daughter Dr. C. Rajini Reddy joined in the premises vacated by him at Hyderabad where his wife is now residing with her daughter.
It is further stated that now the respondent is aged 74 years and having all old age ailments. He is a chronic diabetic patient from the year 1976 onwards and living on insulin and medicines. He has to take insulin injection twice a day. Whenever he is not having any assistance to take the injection, it is very difficult for him to take the injection by himself. He is also a patient of Hypertension and cardiac problem. He is also having acidity. Thus, unless he takes 18 tablets, 2 insulin injections and 2 beta gin eye drops per day, his survival itself is critical. Due to his old age, he is almost confined to his flat itself and not being able to walk without an attendant.
It is further averred that the respondent filed a suit for partition in O.S. No. 707 of 2007 on the file of the III Additional Chief Judge at Hyderabad against the petitioner and also against his daughter and son for 1/4th share, which is legitimately due to him. He apprehends danger to his life from the petitioner and also from other defendants therein. If the OP is transferred, he will have to come frequently to Hyderabad to appear in person and in such an event, there is every possibility of physical harm to him from the petitioner and others. In view of this contingency, the transfer of the petition aforesaid as prayed for is not justified and he will be put to irreparable loss and injury.
It is further stated that the respondent and the petitioner lived together at Visakhapatnam till October 2003 and the petitioner left the matrimonial home without any justification and staying with their daughter at Hyderabad. So, the Family Court, Visakhapatnam has got territorial jurisdiction to entertain O.P. 1347 of 2008. Having regard to the comparative hardship inasmuch as the respondent is aged 74 years with all old age ailments and he is almost confined to bed and not in a position to move and recently, he is afflicted with rheumatic pains in the knees and unable to walk freely, if the OP No. 1347 of 2008 is transferred to Hyderabad, it is impossible for him to go over to Hyderabad. Even as per the allegations of the petitioner, she was advised to take bed rest for six weeks for her alleged ailment of ankle sprain and the said period of six weeks has already elapsed. Having regard to the relief sought by him in OP 1347 of 2008, the petitioner is not entitled to protract the litigation by filing petition for transfer inasmuch as the relief sought by him is only requesting the petitioner to stay with him being his legally wedded wife.
8. The learned Counsel for the petitioner relied on 'Amita Shah v. Virender Lal Shah' : (2003) 10 SCC 609, 'Mangla Patil Kale v. Sanjeev Kumar Kale' : (2003) 10 SCC 280 and 'Datla Padmavathi Devi v. Datla Ravindra Rayapuraju Verma' : (2002) 10 SCC 500.
9. In the light of the respective stands taken by the parties and also the further substantial stand taken by the respondent that O.S. No. 707 of 2007 on the file of the III Additional Chief Judge at Hyderabad had been filed for partition and also in the light of the averments made in the affidavit filed in support of the Tr.CMP, this Court is of the considered opinion that the Tr.CMP has to be ordered.
10. Accordingly, the Tr.CMP is ordered and O.P. No. 1347 of 2008 on the file of the Family Court, Visakhapatnam is hereby withdrawn and transferred to the Family Court, Hyderabad for disposal in accordance with law. There shall be no order as to costs.