High Court
Case Details
Neutral Citation No. - 2025:AHC:133196 Court No. - 37 Case :- TRANSFER APPLICATION (CIVIL) No. - 569 of 2022 Applicant :- Smt. Sakshi Jaiswal Opposite Party :- Saurabh Prasad Counsel for Applicant :- Priyavrat Tripathi,Sweety Srivastava Counsel for Opposite Party :- Shubhra Singh Hon'ble Chandra Kumar Rai,J. 1. Heard learned counsel for the applicant and Ms. Shubhra Singh, learned counsel for the opposite party. 2. Brief facts of the case are that applicant is wife and opposite party is husband. Proceeding of matrimonial case No.414 of 2018 filed by opposite party-husband under Section 13 (1) of Hindu Marriage Act having parties (Saurabh Prasad Vs. Sakshi Jaiswal) is pending in the Court of Principal Judge Family Court Varanasi and a case for maintenance filed by applicant under Section 125 Cr.P.C. is pending in the Family Court, Lucknow. Applicant along with her seven years old daughter is residing in her father' house at Lucknow 3.The instant transfer application has been filed with the following prayer:- 1.To transfer the matrimonial case No.414 of 2018 filed under Section 13 (1) Hindu Marriage Act having parties (Saurabh Prasad Vs. Sakshi Jaiswal) pending in the Court of Principal Judge Family Court Varanasi to Principal Judge Family Court, Lucknow. 4. This Court entertained the matter on 08.09.2022 and stayed the further proceeding of the divorce petition. The order dated 08.09.2022 is quoted as under:
Legal Reasoning
8. There is no dispute about the fact that proceeding under Section 13 (1) of the Hindu Marriage Act, 1955 initiated by opposite party/husband is pending at family Court, Varanasi. 9. In order to appreciate the controversy involved in the matter perusal of paragraph Nos.11, 12, 13, 14 and 15 of the affidavit filed in support of instant transfer application will be relevant which are as under: "11. That the Varanasi is situated at a distance of about 320 KM. from Lucknow, where currently the applicant is compelled to live, she having no own source of income will not be able to meet the expense of litigation at Varanasi and if constrained to contest the same, the expenses will be unbearable and might prey to injustice and prejudice. 12. That, ongoing prevailing situations, it is troublesome and very risky to suffer alone for a young lady along with a daughter. The reports of rape and teasing of ladies by the people are being reported and flashed boldly in daily newspapers which are not uncommon. 13. That, the applicant is residing in Lucknow under care of her father in the accommodation purchased and titled on the name of her father in order to pursue the ongoing litigation in the Courts of Lucknow. And also the seven year old daughter of the arrayed parties is carrying on her studies in a school situated at Lucknow And also the applicant owns no property either in tangible or intangible form across the country. 14. That the opposite party and his parents owns a home in Lucknow having a D 1/70 Miss Khan Domti Nagar Lucknow, ground floor of which has been let out on rent and the first floor is being personally used by the opposite parties and his parents. 15. That, the father and mother namely Phool Chandra Jaiswal and Jaiswal are old persons having several common and severe ailment of both the people are undergoing treatment. And also the father of the causes pain when the same comes across fatigue and more travelling." 10. Perusal of the paragraphs Nos.11, 12, 13 14 and 15 of the affidavit filed in support of the instant application as quoted above, this Court found that the prayer of the applicant/wife to transfer the case from Varanasi to Lucknow is genuine. It is also material to mention that opposite party has no objection to the prayer of transfer made by applicant. 11. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of Case No.414 of 2018, Saurabh Prasad vs. Sakshi Jaiswal, under Section 13(1) of the Hindu Marriage Act, 1955, pending in the Court of the Principal Judge, Family Court, Varanasi is transferred to Family Court District-Lucknow. The Family Court, Varanasi is directed to transmit the record of the case to family Court Lucknow forthwith. The family Court Lucknow is directed to decide the aforementioned proceeding of the Case No.414 of 2018, (Saurabh Prasad vs. Sakshi Jaiswal) under Section 13(1) of the Hindu Marriage Act, 1955 in accordance with law expeditiously. Order Date :- 6.8.2025 PS* Digitally signed by :- PRITI SHARMA High Court of Judicature at Allahabad
Arguments
"Heard learned Counsel for the applicant. This is a Transfer Application made on behalf of the wife seeking transfer of Matrimonial Case No. 414 of 2018, Saurabh Prasad vs. Sakshi Jaiswal, under Section 13(1) of the Hindu Marriage Act, 1955, from the Court of the Principal Judge, Family Court, Varanasi to the Family Court at Lucknow. It is submitted by the learned Counsel for the applicant that there are three cases pending inter parties at Lucknow, details whereof are mentioned in paragraph Nos. 4, 5, 7 and 8 of the affidavit and, therefore, if the present proceedings are moved there, it would be convenient to both parties as they can request a single date. It is further argued that the applicant is unemployed having no source of income of her own. She has a eight years daughter to take care of. It would be physically and financially impossible for her to attend at Varanasi on each date fixed. It is next submitted that her defence would be seriously compromised, in case she is compelled to attend at Varanasi. It is argued that the wife's convenience in the matter of venue has to be given primacy in matrimonial causes. Admit. Issue notice. Notice is made returnable on 13.10.2022. Steps be taken both ways within a week. List for orders on 13.10.2022 along with a report regarding service and the postal track attached. Until further orders, the proceedings of Matrimonial Case No. 414 of 2018, Saurabh Prasad vs. Sakshi Jaiswal, under Section 13(1) of the Hindu Marriage Act, 1955, pending in the Court of the Principal Judge, Family Court, Varanasi, shall remain stayed. " 5. Learned counsel for the applicant submitted that Matrimonial Case No. 414 of 2018, Saurabh Prasad vs. Sakshi Jaiswal, under Section 13 (1) of the Hindu Marriage Act, 1955 initiated by the opposite party-husband should be transferred from the Family Court Varanasi to the competent court at Lucknow. He further placed reliance upon the averment made in paragraph Nos.11, 12, 13, 14 and 15 of the affidavit filed in support of the instant transfer application. 6. Ms. Shubhra Singh, learned counsel for the opposite party submitted that opposite party/husband has no objection to the prayer made by the applicant to transfer the proceeding of case No.414 of 2018, Saurabh Prasad vs. Sakshi Jaiswal, under Section 13(1) of the Hindu Marriage Act, 1955, from Varanasi to Lucknow. 7. I have considered the arguments advanced by the learned counsel for the parties and perused the record.