Garun Seth v. Sonam Soni, under Section
Case Details
Court No. - 6 Case :- TRANSFER APPLICATION (CIVIL) No. - 497 of 2021 Applicant :- Sonam Soni Opposite Party :- Garun Seth Counsel for Applicant :- Ashish Kumar,Prashant Mishra Hon'ble J.J. Munir,J. The Office Report dated 22.09.2022 shows that notice sent by the registered post has led to a tracking report that indicates "Item Delivery Confirmed". The report further shows that no one put in appearance. 2. When the case is called on, no one appears on behalf of the opposite party. 3. In the circumstances, service upon the opposite party is held sufficient. 4. 5. 6. Admit. Heard forthwith by consent of parties. The applicant, who is the wife, seeks transfer of Case No. 1198 of 2019, Garun Seth v. Sonam Soni, under Section 13 of the Hindu Marriage Act, 1955, from the Principal Judge, Family Court, Jaunpur to the Family Court at Allahabad. 7.
Legal Reasoning
It is submitted by learned Counsel for the applicant that two cases inter partes are pending at Allahabad (now ‘Prayagraj’) as averred in Paragraph Nos. 6 and 7 of the affidavit filed in support of the application. As such, if the proceedings of the divorce petition are transferred from Jaunpur to Prayagraj, it would promote ease of litigation for both parties, as they can request a single date at the same venue. It is averred in Paragraph Nos. 9, 11 and 13 of the affidavit that the applicant has been threatened by the opposite party with injury to her limb, in case she does not desist from prosecuting the case at Jaunpur, which is creating an impediment for the applicant in defending at Jaunpur. It is further argued Page 2 of 3 that the applicant had a serious accident, which led to a fracture and installation of intramedullary rod in her right lower limb. The evidence about the fracture has been annexed as Annexure No. 5 to the affidavit filed in support of the application. In view of the said medical condition of hers, it would be difficult for the applicant to travel to Jaunpur on each date scheduled there. By contrast, the opposite party is an Assistant Professor with the Feroze Gandhi College, Raebareli and draws a handsome salary. He is an able-bodied man and can conveniently defend proceedings at Prayagraj. It is also urged that convenience of the wife about the venue in causes matrimonial has to be accorded primacy. 8. Since there is no counter affidavit filed on behalf of the opposite party, the averments in the affidavit remain unrebutted. 9. Upon hearing learned Counsel for applicant, this Court finds that two cases inter partes are pending at pending before the Court at Allahabad, one being an application under Section 125 of the Code of Criminal Procedure, 1973 and the other, a case under the Domestic Violence Act, 2005. There is nothing to show that the opposite party has applied for transfer of the two cases pending before the Court at Allahabad to Jaunpur or some other Court. In the circumstances, the opposite party has to appear before the Court at Allahabad and defend proceedings at the said station. In the event, therefore, the divorce petition is transferred from Jaunpur to the Court at Allahabad, both parties can request a single date, which would promote ease of litigation. The applicant, though employed as a teacher, appears to be facing a number of health issues, including a permanent disablement on account of injury to her right lower limb. By contrast, the opposite party is an able-bodied man and employed as an Assistant Professor with the Feroze Gandhi College, Raebareilly. He can conveniently prosecute the proceedings at Prayagraj in addition to the two cases, which he has to defend at the said station in any event. Quite apart, it is by now well settled that in the Transfer Application (Civil) No. 497 of 2021 Page 3 of 3 matter of venue, convenience of the wife has to be accorded primacy. In this connection, reference may be made to a recent decision of the Supreme Court in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha1 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) 10.
Decision
In the result, this transfer application succeeds and stands allowed. The proceedings of Case No. 1198 of 2019, Garun Seth v. Sonam Soni, under Section 13 of the Hindu Marriage Act, 1955, from the Principal Judge are withdrawn from the Principal Judge, Family Court, Jaunpur and made over to the Principal Judge, Family Court, Allahabad, who shall proceed to try the petition himself or assign it to an Additional Principal Judge available on the Court, as he deems fit. In either case, 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. 11. Let this order be communicated to the Principal Judge, Family Court, Jaunpur and the Principal Judge, Family Court, Allahabad by the Registrar (Compliance). Order Date :- September 23, 2022 I. Batabyal / SA 1 2022 SCC OnLine SC 1199 (J.J. Munir, J.) Transfer Application (Civil) No. 497 of 2021 Digitally signed by ISHAN BATABYAL Date: 2022.10.21 10:52:23 IST Reason: Location: High Court of Judicature at Allahabad