GAYATRI v. SANTOSH

Santosh. The facts of the case further reveal that an appeal was preferred against the ex-parte order and this Court by an order dt. 10/5/2011, passed in MA NO. 2829 / 2010, has allowed the appeal and the matter has been remanded back to the trial Court for deciding the matter afresh and custody of Mst. Mayank has also been handed over to the present applicant. In short, now the present applicant is living at Indore with two minor children. It is pertinent to note that --- 3 --- the application was initially filed for custody of male child only, however, respondent – Santosh who is present before this Court has informed that later on an amendment application has also been filed for custody of the girl child also who is aged about 4 years. It has also been stated that the order passed by this Court in MA No. 2829 / 2010 was not complied with within the time framework as directed by this court and thereafter the lady was forced to file a Contempt petition and it was only the Contempt Petition which forced the respondent to handover the child to the wife.

It has also been brought to the notice of this court that issues have not been framed before the trial court till date and a case is also pending at Family Court, Indore and a meager amount amount of Rs.500/- per month is being paid to the wife. It has also been stated that she does not have other male members in the family to escort her to Mandsaur and she being a lady who was allegedly subjected to cruelty by her husband, is not in a position to go to Mandsaur and to attend the case which is pending at Mandsaur. The sole respondent has vehemently opposed the --- 4 --- application for transfer of the case from Mandsaur to Indore and his contention is that large number of witnesses are to be examined and it will be practically impossible for him to bring all the witnesses to Indore on each and every date of hearing. It has also been stated that he is ready to pay fare as well as other expenses to the lady for attending the case at Mandsaur.

It has also been stated in the reply that the applicant can very well attend the hearing at Mandsaur and the male child who is aged about 10 – 11 years will take care of the minor girl child aged about 5 years, in absence of the mother. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that earlier an ex-parte order was passed by the 1st ADJ, Mandsaur in Guardian Case No. 20 / 2010 whereby the learned trial Court has allowed the application of the respondent – father filed u/S. 6-A of the Hindu Minorities and Guardianship Act 1956 read with Sec. 26 of the Hindu Marriage Act, 1955 for appointing guardian of child Mayank. The ex-parte order --- 5 --- was set aside by this Court vide order dt. 10/5/2011, passed in MA No. 2829 / 2010. In the present case, it is an admitted fact that the earlier ex-parte order was passed for appointment of guardian and the same has been set aside by this Court.

The reason assigned by the present applicant is that she was not having sufficient funds to go to Mandsaur in respect of the case filed by her husband. Not only this, she is having two minor children aged about 10 and 5 years respectively and both of them are studying at Indore. The contention of the respondent, which is duly supported by an Affidavit to the reply that the minor boy aged about 10 – 11 years will take care of the girl child aged about 4 – 5 years during absence of the applicant – mother, sounds ridiculous. A 10 year old boy who is himself going to School cannot look after a girl child aged about 4 – 5 years, meaning thereby, in case the proceedings are allowed to continue at Mandsaur, all the 3 of them – mother and 2 children – will have to attend the hearing at Mandsaur. The pleadings further reveal that there are no other family members in the family. The wife does not have sufficient financial means to --- 6 --- attend the hearing at Mandsaur and she is apprehending harm to herself at Mandsaur.

It is also an admitted fact that the minor son Mayank and the minor daughter are studying at Indore . This Court in the case of Mallika Vs. Brahmbhushan reported in 2004 (I) MPJR SN 22, which was again in respect of an application u/S. 24 of the Code of Civil Procedure, 1908, has held as under : “Considering the rival contentions by the parties, it is not in dispute that the applicant is not in employment and earning from any source. She is woman. Definitely to come at Khandwa from Ujjain is burdensome to the applicant not only financially but mentally also. She has to come all alone and has to depend upon mercy of others or has to accompany a person to attend the date of hearing. The difficulty of the applicant is apparent. To go to another city woman has to suffer various difficulties apart from the financial burden. The applicant is facing difficulty to attend the proceedings at Khandwa, it is in the interest of justice that proceedings at Khandwa be transferred to Ujjain.

Apex court recently in the case of Seema Vs. Rakesh Kumar (2000) 9 SCC 27, Gurmeet Kaur Vs. S. Balkar Singh (2000) 10 SCC 354 and Deepa Vs. A. Panicke (2000) 9 SCC 441 has considered the aforesaid difficulty of a wife who is facing financial burden and personal inconvenience to attend the case at a distant place. In view of the aforesaid judgments of the apex court, the case filed at Khandwa deserves to be transferred at Ujjain. The apex court in the case of Samita Bhattacharjee Vs. --- 7 --- Kulashekhar Bhattacharjee reported in 2008 (2) SCCD 641 (SC), has held down that a transfer petition for transferring the divorce petition filed by the husband be transferred to the place where the wife was residing keeping in view the fact that wife was having a minor child and was residing in her parental home in District Howrah. Keeping in view the aforesaid judgments and also keeping in view the peculiar facts and circumstances of the case, this Court is of the considered opinion that the matter which is pending before the 1st ADJ, Mandsaur ie., Guardianship Case No.

20 / 2010 deserves to be transferred to Indore and the same is accordingly transferred to Indore. The parties present in person before this Court are directed to appear before the District Judge, Indore on 26/3/2012 who in turn shall place the matter before the Court of competent jurisdiction to try the cases under the Hindu Minorities & Guardianship Act, 1956. No order as to costs. KR (S. C. SHARMA) J U D G E