Kanchan Devi v. Manish Kumar Palriwal

Order

Mr. Sidhendhra Narayan Singh, Adv. : Mr. Rakesh Chandra, Advocate 7

26.11.2013 The present petition has been filed for transfer of Matrimonial/Divorce Suit No. 56 of 2013 filed by the opposite party no. 1 from the Court of Principal Judge, Family Court, Khagaria to the Court of Principal Judge, Family Court, Begusarai.

02. It is stated on behalf of the petitioner-wife that soon after her marriage on 28.01.2012 with the O.P. No. 1, she was tortured in various ways including forceful abortion in October, 2012 by her in-laws. On becoming pregnant again she was ousted from her matrimonial home on 29.01.2013 after which she has been residing with her father at village- Malipur, P.S.- Garhpura, District-Begusarai. When efforts for restoring matrimonial harmony failed, the petitioner filed Complaint Case No. 1080/C/2013 under Section 498A of the Indian Penal

Patna High Court MJC No.3526 of 2013 (7) dt.24-11-2013 2 Code etc. against her husband and in-laws at Begusarai which is pending in the Court of Sub-divisional Judicial Magistrate, Begusarai. It is stated that thereafter, she received notice of Divorce Suit No. 56 of 2013 filed by O.P. No. 1 at Khagaria. It is also stated that the petitioner has since delivered a son who is at present barely a few months old.

03. Learned counsel for the petitioner submits that the petitioner is not in a position to travel to Khagaria in order to effectively contest the suit filed by the O.P. No. 1 for various reasons. Primarily, she was pregnant at the relevant time and has since delivered a baby child and it will be extremely difficult to attend to the Divorce Suit at Khagaria, considering the tender age of the child and all the problems associated in that regard. It is further submitted that considering the forceful abortion in October, 2012 she has reasonable apprehension of threat to her life at the hands of her in-laws at Khagaria. Besides in view of the complaint case filed by her already pending at Begusarai, it would be expedient if the Divorce Suit were also transferred to Begusarai as on a balance of convenience it would be far easier for the O.P. No. 1 to travel to Begusarai to attend to both the cases. Learned counsel for the petitioner has relied on (2001) 10 SCC 41 (Sumita Singh Vrs. Kumar Sanjay and Another) for the proposition that in the husband’s suit against the wife, it is the wife’s convenience which must be looked at. Reliance has also been placed on Patna High Court MJC No.3526 of 2013 (7) dt.24-11-2013 3 2010 (4) PLJR 848 (Kumari Archana @ Rinu Vrs. Ajit Ranjan) wherein a Bench of this Court held as follows:- “5. On a consideration of the aforesaid facts and circumstances, it is evident that in such matters, the view of this Court and the Apex Court is that the inconvenience caused to a female in traveling to another place for pursing a matrimonial case in the socio- economic situation prevailing in the in this State, country, particularly would be much more inconvenience caused to the husband in pursuing such matter where the wife resides”.

04. Learned counsel for the Opposite Party No. 1 on the other hand has filed a counter affidavit and submits that the petitioner is a resident of village- Malipur, P.S.- Garhpura, and if she can travel from there to Begusarai, she can very well travel to Khagaria which is 41 K.Ms away and connected by Railway. Besides it is submitted that the ground given in the transfer petition with regard to five and half months pregnancy is no longer available as a child has already since been born and the ground of pregnancy therefore cannot be pleaded as a ground of inconvenience. Moreover, the apprehension of threat is merely a figment of her imagination as even in her transfer petition she has made no allegation of any such overt act on the part of O.P. No. 1 or his family members. Reliance is also placed on AIR (2003) SC 2661 (Ashwani Kumar Singh Vrs. U.P. Public Service Commission and Ors.) to submit that Courts ought to place reliance on decision only in factually similar Patna High Court MJC No.3526 of 2013 (7) dt.24-11-2013 4 situations.

05. Having considered the rival submissions of the parties, this Court is of the view that in the interest of justice, Divorce Suit No. 56 of 2013 ought to be transferred to Begusarai. Even though it is admitted that the petitioner-wife is no longer pregnant as she has already delivered a baby child, the problems associated with travel along with the baby child would be considerable and cannot be ignored. Besides as held in the decisions relied upon by the petitioner, it is the convenience of the wife that has primarily to be considered in a suit filed by the husband. Learned counsel for the O.P. No. 1 has not been able to show that these decisions are not factually similar to the present case. This Court is of the view that the comparative inconvenience to the wife would be far more if she is made to travel to Khagaria to defend the Divorce Suit.

06. In the above circumstances, the prayer of the petitioner-wife deserves to be accepted and Divorce Suit No. 56 of 2013 pending in the Family Court, Khagaria is directed to be transferred to the Court of the Principal Judge, Family Court, Begusarai forthwith.

08. This MJC stands allowed. P.K./- (Vikash Jain, J)