High Court
Case Details
Court No. - 6 Case :- TRANSFER APPLICATION (CIVIL) No. - 278 of 2022 Applicant :- Smt. Shilpi Joshi Opposite Party :- Rohit Counsel for Applicant :- Rajesh Kumar Mishra Hon'ble J.J. Munir,J. This is a transfer application moved by the wife seeking transfer of Case No.
Legal Reasoning
It is settled law by now, where some cases inter partes are pending at one station brought by the wife, and a different one at another station brought by the husband, generally speaking, the case instituted by the husband ought to be transferred to the station, where the wife has brought proceedings. In the present case, the peculiar features that make it much different for the wife to travel to Shahjahanpur from Rampur on every date fixed is the fact that she has a child of seven months in her lap, who cannot be separated from his mother. In case, she is forced to appear before the Court at Shahjahanpur, it would be difficult for her along with her child to travel all the distance between the stations on each date fixed. The Court, where the case is pending is a Family Court and in case the applicant does not appear, her defence may be seriously compromised. In addition, the applicant-wife does not have an independent source of income and is entirely independent on her father whose resources are said to be scanty. Otherwise also, given the prevalent conditions in the Indian society, where generally women are economically disadvantaged, the convenience of the wife has to be accorded primacy in the matter of venue in causes matrimonial, unless there be some other distinct features warranting a different treatment. In this connection, reference may be made to the recent decision of the Supreme Court in N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha, Civil Appeal No.4894 of 2022, decided on July, 18, 2022, where on the issue in hand, it has been held: "9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial 4 matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer." (Emphasis by Court) In the circumstances, this Court is of opinion that a case for transfer is made out.
Arguments
876 of 2021 Rohit vs. Smt. Shilpi Joshi under Section 9 of the Hindu Marriage Act, 1955 from the Principal Judge, Family Court, Shahjahanpur to the Principal Judge, Family Court, Rampur. The petition aforesaid brought by the husband seeks relief of restitution of conjugal rights with an alternate prayer for divorce, if the wife refuses to comply with the decree for restitution. Notice to the opposite party was issued vide order dated 07.05.2022. Notice issued to the said opposite party has returned with the postal cover undelivered. The remarks are reflected in the office report dated 28.07.2022, that read: "Sole Respondent: Undelivered cover has been received back with two post office remarks as अधधिदई गगाሙव मम जगकर पतग ककयग ततो पतग चलग ककी पगनने वगलग कलगन एक्सचमज वगलली गलली मम नरनेश ्ቚधिगन कने मगकन कने पलीछने रहतग हह, कसगन सने बटने and the other remark is illegible and the same is placed on record for kind perusal also no one put in appearance. The T.A. is put up for order before the Hon'ble Court." The notice aforesaid was sent to the opposite party by the Registry on the address mentioned in the cause title in the application which reads: "Rohit son of Brijesh R/o Adhidai, Tahsil Kalan/Jalalabad, Shahjahanpur, presently reside at Kasba and Police Station Kalan B.S.N.L. wali Gali, Tehsil Kalan, District Shahjahanpur." District The said address of the opposite party is the same as the one given out by the opposite party in the cause title of Case No. 876 of 2021, instituted by him before the Principal Judge, Family Court, Shahjahanpur. If a notice sent to the address that the opposite party has furnished in proceedings before the Court below cannot be served, service must be held sufficient. Admit. Case called on. No one appears on behalf of the opposite party. Heard forthwith. Heard Mr. Rajesh Kumar Mishra, learned counsel for the applicant. It is pointed out by the learned counsel for the applicant that the parties were married according to Hindu rites on 29.06.2020. It is averred that the parties have turned an estranged couple shortly after marriage. It is submitted by the learned counsel for the applicant that the parties fell out over the issue of the husband demanding dowry, which her father was not in a position to make good. As such, the applicant came away to her parents' place and is staying with them. Subsequently, the opposite party-husband has instituted the present proceedings for restitution of conjugal rights with an alternate prayer for a decree of divorce. It is averred in paragraph no. 8 of the affidavit that the opposite party has not paid anything towards maintenance. Two cases, one under Section 498A IPC etc, and an application under Section 12 of the Domestic Violence Act, are pending before the concerned Courts at Rampur. The applicant stays with her parents and her father is not financially well off. She has no means to undertake the journey from Rampur to Shahjahanpur on every date fixed. In the event, she is forced to attend at Shahjahanpur, her defence would be compromised. The distance between two stations is 180 kms. and the applicant does not have the physical means also to travel the distance from Rampur to Shahjahanpur and back on every scheduled date along with her minor child, who is 6-7 months old and who cannot stay away from his mother. It is also argued by the learned counsel for the applicant that given the fact that two cases are already pending inter partes at Rampur, it would be convenient to both the parties, if the present proceedings are transferred from Shahjahanpur to Rampur, where all three cases can be tried together requesting a single date before the Court(s) concerned. Since, no counter affidavit has been filed, the averments in the affidavit remain unrebutted.
Decision
In the result, this transfer application succeeds and is allowed. Proceedings of Case No. 876 of 2021 Rohit vs. Smt. Shilpi Joshi under Section 9 of the Hindu Marriage Act, 1955 are withdrawn from the Principal Judge, Family Court, Shajahanpur and made over to the Principal Judge, Rampur, who shall proceed to try the petition himself or assign it to an Additional Principal Judge, if available on the Court, as he deems fit. In either case, the trial shall be expedited and endeavour made to conclude the same within six months of the date of receipt of a copy of this order. Let this order be communicated to the Principal Judge, Family Court, Shahjahanpur and the Principal Judge, Family Court, Rampur by the Registrar (Compliance). Order Date :- 28.7.2022/Deepak Digitally signed by DEEPAK KUMAR PANDEY Date: 2022.08.03 17:45:46 IST Reason: Location: High Court of Judicature at Allahabad