Gaurav Kumar v. Smt. Devanshi Chaudhary), under Section

Applicant :- Smt. Devanshi Chaudhary Opposite Party :- Gaurav Kumar Counsel for Applicant :- Pankaj Sharma,Prashant Sharma Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Prashant Sharma, learned counsel for applicant.

2. Brief facts of the case are that applicant is wife and opposite party is husband. Proceeding under Section 13(1) (id) of the Hindu Marriage Act, 1955 initiated at the instance of opposite party/husband is pending in the Court of Principal Judge Family Court at Gautam Budh Naar.

3. The instant transfer application has been filed for the following reliefs:- "It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow this application and further be pleased to transfer the Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary), under Section 13 (1) (id) of Hindu Marriage Act, pending before the Court of Principal Judge, Family Court, Gautam Budh Nagar to the competent Court at Ghaziabad."

4. Notice was issued to opposite party, but no interim order has been granted by this Court in the instant transfer application.

5. As per office report dated 17.03.2025/14.08.2025, service is sufficient upon the opposite party.

6. Learned counsel for applicant submitted that proceeding under Section 13(1) (id) of Hindu Marriage Act is still pending before Principal Judge Family Court, Gautam Budh Nagar, as such the instant transfer application should be decided on merit. Learned counsel for applicant submitted that in view of the pendency of the cases between the parties at Family Court, Ghaziabad, the proceeding under Section 13(1) (id) of the Hindu Marriage Act initiated at the instance of opposite party/husband at Gautam Budh Nagar should be transferred to Ghaziabad. He placed the averment made in paragraph nos. 9, 10, 11, 12 & 13 of the affidavit filed in support of the instant transfer application in order to demonstrate that proceeding under Section 13(1) (id) of Hindu Marriage Act should be transferred from the Court of Principal Judge Family Court, Gautam Budh Nagar to the Family Court, Ghaziabad.

7. I have considered the arguments advanced by the learned counsel for the parties and perused the record.

8. There is no dispute about the fact that proceeding under Section 13(1) (id) of the Hindu Marriage Act initiated at the instance of opposite party/husband is pending in the Court of Principal Judge Family Court, Gautam Budh Nagar.

9. In order to appreciate the controversy involved in the matter, perusal of paragraph nos. 9, 10, 11, 12 & 13 of the affidavit filed in support of instant transfer application will be relevant, which are as under:- "9. That it is humbly stated that the applicant being a lady has to suffer a lot of difficulties while doing pairavi of her case at Gautam Budh Nagar, which is causing great hardship and agony to her.

10. That it has already been stated that several cases are pending between the applicant and opposite party at Ghaziabad, hence no prejudice is going to be caused to the opposite party if the present case i.e. Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary) is transferred from Gautam Budh Nagar to Ghaziabad.

11. That the applicant is a helpless lady and she is dependent upon her old father as she has no source of income, in such circumstances she is unable to appear on each and every date fixed in the Divorce Petition, hence the Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary) pending before the Court of Principal Judge, Family Court, Gautam Budh Nagar is liable to be transferred to the competent Court at Ghaziabad.

12. That the opposite party and his family members are criminal nature and mischievous and antisocial elements and therefore the applicant has serious apprehension and danger to her life at Gautam Bhudh Nagar hence the Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary) is liable to be transferred to the competent Court at Ghaziabad.

13. That the opposite party and his family members are continuously making threats to the applicant and therefore she has serious apprehension that the opposite party may cause harm to her if she appears before the Court at Gautam Budh Nagar."

10. Perusal of the averment made in paragraph nos. 9 to 13 as quoted above demonstrates that proceeding of Section 13 (1) (id) of Hindu Marriage Act initiated at the instance of opposite party/husband should be transferred from the Court of Principal Judge Family Court, Gautam Budh Nagar to Family Court, Ghaziabad.

11. There is no counter affidavit to the averments made in the affidavit filed in support of the instant transfer application, as such there is no option except to decide the instant transfer application on merit on the basis of averments made in the affidavit filed in support of the transfer application.

12. Apex Court in the Case reported in (2016) 14 Supreme Court Cases 356 (Vaishali Shridhar Jagtap Vs. Shridhar Vishwanath Jagtap) has transferred the proceeding of divorce petition filed by husband to the place where wife reside. Apex Court Judgment rendered in Vaishali Shridhar Jagtap (Supra) will be relevant for perusal, which are as under:- "1. Leave granted.

2. The appellant is the wife of the respondent. She is aggrieved since the High Court of Bombay declined to transfer the case, filed in Mumbai by the respondent for divorce, to Barshi where the appellant resides-parental home. The Review Petition was also dismissed. The High Court has taken the view that the appellant does not have to travel on all days for defending the case, and on the days of her travel, she will be paid a sum of rupees one thousand five hundred.

3. According to the appellant, her mother is aged and it is difficult for her mother to accompany the appellant for her travel to Mumbai. It is also stated that there are three criminal cases - one for maintenance, the second under the Prevention of Domestic Violence Act, 2005 and the third under Section 498A of The Indian Penal Code, 1860 and other related provisions, pending at Barshi, and one on the civil side for restitution.

4. The learned Counsel appearing for the respondent has vehemently opposed the prayer for transfer. It was submitted that the appellant's mother is only 60 years old and that she has two brothers. It is also pointed out that majority of the witnesses are from Mumbai and it would be difficult for them to travel to Barshi, and, in any case, the attempt is to harass the respondent-husband.

5. Admittedly, the distance between Mumbai and Barshi is around 400 kilometres. Four cases between the parties are pending at Barshi. Apparently, the comparative hardship is more to the appellant-wife. This aspect of the matter, unfortunately, the High Court has missed to take note of.

6. In view of the above, the impugned orders are set aside and the M.J.Petition No. 2287 of 2013 filed by the respondent-husband in Family Court Bandra, Bombay will stand transferred to the court of competent jurisdiction at Barshi.

7. The appeals are allowed as above. There shall be no orders as to costs."

13. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary), under Section 13(1)(id) of Hindu Marriage Act, pending in the Court of Principal Judge Family Court, Gautam Budh Nagar is transferred to the Family Court at Ghaziabad. The Principal Judge Family Court, Gautam Budh Nagar is directed to transmit the record of the Divorce Petition No. 576 of 2022 forthwith to the Family Court at Ghaziabad. The Family Court, Ghaziabad is directed to decide the proceeding of aforementioned Divorce Petition No. 576 of 2022 under Section 13(1) (id) of the Hindu Marriage Act expeditiously, after affording proper opportunity of hearing to the parties. Order Date :- 18.8.2025 Neetu NEETU SINGH High Court of Judicature at Allahabad

Applicant :- Smt. Devanshi Chaudhary Opposite Party :- Gaurav Kumar Counsel for Applicant :- Pankaj Sharma,Prashant Sharma Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Prashant Sharma, learned counsel for applicant.

2. Brief facts of the case are that applicant is wife and opposite party is husband. Proceeding under Section 13(1) (id) of the Hindu Marriage Act, 1955 initiated at the instance of opposite party/husband is pending in the Court of Principal Judge Family Court at Gautam Budh Naar.

3. The instant transfer application has been filed for the following reliefs:- "It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow this application and further be pleased to transfer the Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary), under Section 13 (1) (id) of Hindu Marriage Act, pending before the Court of Principal Judge, Family Court, Gautam Budh Nagar to the competent Court at Ghaziabad."

4. Notice was issued to opposite party, but no interim order has been granted by this Court in the instant transfer application.

5. As per office report dated 17.03.2025/14.08.2025, service is sufficient upon the opposite party.

6. Learned counsel for applicant submitted that proceeding under Section 13(1) (id) of Hindu Marriage Act is still pending before Principal Judge Family Court, Gautam Budh Nagar, as such the instant transfer application should be decided on merit. Learned counsel for applicant submitted that in view of the pendency of the cases between the parties at Family Court, Ghaziabad, the proceeding under Section 13(1) (id) of the Hindu Marriage Act initiated at the instance of opposite party/husband at Gautam Budh Nagar should be transferred to Ghaziabad. He placed the averment made in paragraph nos. 9, 10, 11, 12 & 13 of the affidavit filed in support of the instant transfer application in order to demonstrate that proceeding under Section 13(1) (id) of Hindu Marriage Act should be transferred from the Court of Principal Judge Family Court, Gautam Budh Nagar to the Family Court, Ghaziabad.

7. I have considered the arguments advanced by the learned counsel for the parties and perused the record.

8. There is no dispute about the fact that proceeding under Section 13(1) (id) of the Hindu Marriage Act initiated at the instance of opposite party/husband is pending in the Court of Principal Judge Family Court, Gautam Budh Nagar.

9. In order to appreciate the controversy involved in the matter, perusal of paragraph nos. 9, 10, 11, 12 & 13 of the affidavit filed in support of instant transfer application will be relevant, which are as under:- "9. That it is humbly stated that the applicant being a lady has to suffer a lot of difficulties while doing pairavi of her case at Gautam Budh Nagar, which is causing great hardship and agony to her.

10. That it has already been stated that several cases are pending between the applicant and opposite party at Ghaziabad, hence no prejudice is going to be caused to the opposite party if the present case i.e. Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary) is transferred from Gautam Budh Nagar to Ghaziabad.

11. That the applicant is a helpless lady and she is dependent upon her old father as she has no source of income, in such circumstances she is unable to appear on each and every date fixed in the Divorce Petition, hence the Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary) pending before the Court of Principal Judge, Family Court, Gautam Budh Nagar is liable to be transferred to the competent Court at Ghaziabad.

12. That the opposite party and his family members are criminal nature and mischievous and antisocial elements and therefore the applicant has serious apprehension and danger to her life at Gautam Bhudh Nagar hence the Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary) is liable to be transferred to the competent Court at Ghaziabad.

13. That the opposite party and his family members are continuously making threats to the applicant and therefore she has serious apprehension that the opposite party may cause harm to her if she appears before the Court at Gautam Budh Nagar."

10. Perusal of the averment made in paragraph nos. 9 to 13 as quoted above demonstrates that proceeding of Section 13 (1) (id) of Hindu Marriage Act initiated at the instance of opposite party/husband should be transferred from the Court of Principal Judge Family Court, Gautam Budh Nagar to Family Court, Ghaziabad.

11. There is no counter affidavit to the averments made in the affidavit filed in support of the instant transfer application, as such there is no option except to decide the instant transfer application on merit on the basis of averments made in the affidavit filed in support of the transfer application.

12. Apex Court in the Case reported in (2016) 14 Supreme Court Cases 356 (Vaishali Shridhar Jagtap Vs. Shridhar Vishwanath Jagtap) has transferred the proceeding of divorce petition filed by husband to the place where wife reside. Apex Court Judgment rendered in Vaishali Shridhar Jagtap (Supra) will be relevant for perusal, which are as under:- "1. Leave granted.

2. The appellant is the wife of the respondent. She is aggrieved since the High Court of Bombay declined to transfer the case, filed in Mumbai by the respondent for divorce, to Barshi where the appellant resides-parental home. The Review Petition was also dismissed. The High Court has taken the view that the appellant does not have to travel on all days for defending the case, and on the days of her travel, she will be paid a sum of rupees one thousand five hundred.

3. According to the appellant, her mother is aged and it is difficult for her mother to accompany the appellant for her travel to Mumbai. It is also stated that there are three criminal cases - one for maintenance, the second under the Prevention of Domestic Violence Act, 2005 and the third under Section 498A of The Indian Penal Code, 1860 and other related provisions, pending at Barshi, and one on the civil side for restitution.

4. The learned Counsel appearing for the respondent has vehemently opposed the prayer for transfer. It was submitted that the appellant's mother is only 60 years old and that she has two brothers. It is also pointed out that majority of the witnesses are from Mumbai and it would be difficult for them to travel to Barshi, and, in any case, the attempt is to harass the respondent-husband.

5. Admittedly, the distance between Mumbai and Barshi is around 400 kilometres. Four cases between the parties are pending at Barshi. Apparently, the comparative hardship is more to the appellant-wife. This aspect of the matter, unfortunately, the High Court has missed to take note of.

6. In view of the above, the impugned orders are set aside and the M.J.Petition No. 2287 of 2013 filed by the respondent-husband in Family Court Bandra, Bombay will stand transferred to the court of competent jurisdiction at Barshi.

7. The appeals are allowed as above. There shall be no orders as to costs."

13. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of Divorce Petition No. 576 of 2022 (Gaurav Kumar Vs. Smt. Devanshi Chaudhary), under Section 13(1)(id) of Hindu Marriage Act, pending in the Court of Principal Judge Family Court, Gautam Budh Nagar is transferred to the Family Court at Ghaziabad. The Principal Judge Family Court, Gautam Budh Nagar is directed to transmit the record of the Divorce Petition No. 576 of 2022 forthwith to the Family Court at Ghaziabad. The Family Court, Ghaziabad is directed to decide the proceeding of aforementioned Divorce Petition No. 576 of 2022 under Section 13(1) (id) of the Hindu Marriage Act expeditiously, after affording proper opportunity of hearing to the parties. Order Date :- 18.8.2025 Neetu NEETU SINGH High Court of Judicature at Allahabad