Gaurav Yadav v. Rekha Yadav), under Section

"1. Heard learned counsel for the applicant.

2. The present application has been filed by the applicant-wife seeking transfer of Case No.550 of 2021 (Gaurav Yadav Vs. Smt. Rekha Yadav), under Section 13 of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Etawah to court of Principal Judge, Family Court, Ghaziabad. 2 TACL No. 868 of 2023

3. It is submitted by the learned counsel for the applicant that two proceedings; one under Section 125 of Cr.P.C. and another under Sections 498A, 323, 504, 506, 342 and 354 I.P.C. and Section 3/4 of Dowry Prohibition Act have been instituted by the applicant against the opposite party at Ghaziabad whereas opposite party has instituted the divorce petition at District, Etawah. It is submitted that the applicant alongwith her minor child is residing with her aged parents at Ghaziabad and distance between Ghaziabad to Etawah is more than 300 kilometres and applicant has no source of income to meet the litigation expenses and other expenses which is to be incurred in travelling from Ghaziabad to Etawah to contest the case instituted by opposite party at Etawah on each and every date fixed in the matter. It is further submitted that no amount towards maintenance is being paid to the applicant by the opposite party. Thus, the submission is that if the case is allowed to be proceeded at Etawah, applicant would suffer serious prejudice.

4. Matter requires consideration.

5. Issue notice to respondent/opposite party returnable at an early date.

6. Steps by both modes i.e. ordinary post as well as R.P./A.D. be taken for service of notice upon respondent/opposite party within ten days.

7. Opposite party is granted four weeks time to file counter affidavit.

8. List on 03.01.2024.

9. In case steps are not taken within the aforesaid period, the matter shall be listed under Chapter XII Rule 4 of the Allahabad High Court Rules immediately after expiry of ten days.

10. Until further orders of this Court, further proceeding of Case No.550 of 2021 (Gaurav Yadav Vs. Smt. Rekha Yadav), under Section 13 of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Etawah shall remain stayed. "

5. Learned counsel for the applicant submitted that the proceeding between the parties are pending at District- Ghaziabad, as such, the proceeding under Section 13 of Hindu Marriage Act should be transferred from Principal Judge, Family Court, Etawah to Family Court, Ghaziabad. He placed the averment made in paragraph nos.16 to 18 of the affidavit filed in support of the instant transfer application in order to demonstrate that the proceeding of Hindu Marriage Act initiated by opposite party/ husband should be 3 TACL No. 868 of 2023 transferred from the Court of Principle Judge, Family Court, Etawah to Family Court, Ghaziabad.

7. Learned counsel for the opposite party submitted that the opposite party/ husband has no objection to the prayer made by the applicant to transfer the proceeding of Hindu Marriage Act from Principle Judge, Family Court, Etawah to Family Court, Ghaziabad.

8. I have considered the argument advanced by leaned counsel for the parties and perused the records.

9. There is no dispute about the fact that the proceeding under Section 13 of Hindu Marriage Act is pending before Family Court, Etawah.

10. In order to appreciate the controversy involved in the matter, perusal of paragraph nos.16 to 18 of the affidavit filed in support of the instant transfer application will be relevant which are as under: "16. That the applicant is fully unemployed and there is no source of income of the applicant. The applicant and her child are fully dependent on the parents of applicant and at present time, the applicant is residing alongwith her parents at her mother's house, therefore, she is unable to attend the proceedings of divorce petition at District Judgeship, Etawah.

17. That the distance between the District Judgeship, Etawah and the house of the applicant is approximate 320 KM and there is no source of income of the applicant and also she is unable to attend the proceedings of divorce petition alongwith her child at District Judgeship, Etawah.

18. That the opposite party is threatening to the applicant for facing serious consequence, when she will come at Etawah for attending the proceedings of divorce petition before the Court concern at Etawah and therefore, due to reason aforesaid, the life of the applicant and her child is in danger and therefore, she is unable to attend the court before the District Judgeship, Etawah."

11. The perusal of the paragraph nos.16 to 18 of the affidavit as quoted above demonstrate that prayer of the applicant for transfer of proceeding under Section 13 of Hindu Marriage Act from Principle 4 TACL No. 868 of 2023 Judge, Family Court, Etawah to Family Court, Ghaziabad is genuine coupled with the fact that opposite party / husband has no objection to the prayer of transfer made by applicant/ wife.

12. Apex Court in the case reported in (2016) 14 Supreme Court Cases 356, Vaishali Shridhar Jagtap vs. Sridhar Vishwanath Jagtap has transferred the proceeding of divorce petition filed by husband to the place where wife reside. Paragraph nos.1 to 7 of the judgement 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, 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." 5 TACL No. 868 of 2023

13. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of Divorce Petition No.550 of 2021 (Gaurav Yadav vs. Rekha Yadav), under Section 13 of Hindu Marriage Act pending in the Court of Principle Judge, Family Court, Etawah transferred to Family Court, Ghaziabad. The Family Court, Etawah is directed to transmit the record of the case to Family Court, Ghaziabad forthwith. The Family Court, Ghaziabad is directed to decide the aforementioned proceeding of Divorce Petition No.550 of 2021 (Gaurav Yadav vs. Rekha Yadav), under Section 13 of Hindu Marriage Act accordance with law after affording proper opportunity of hearing to the parties, expeditiously preferably within a period of six months from the date of production of certified copy of this order. September 17, 2025 Rameez (Chandra Kumar Rai,J.) RAMEEZ AHMED High Court of Judicature at Allahabad

"1. Heard learned counsel for the applicant.

2. The present application has been filed by the applicant-wife seeking transfer of Case No.550 of 2021 (Gaurav Yadav Vs. Smt. Rekha Yadav), under Section 13 of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Etawah to court of Principal Judge, Family Court, Ghaziabad. 2 TACL No. 868 of 2023

3. It is submitted by the learned counsel for the applicant that two proceedings; one under Section 125 of Cr.P.C. and another under Sections 498A, 323, 504, 506, 342 and 354 I.P.C. and Section 3/4 of Dowry Prohibition Act have been instituted by the applicant against the opposite party at Ghaziabad whereas opposite party has instituted the divorce petition at District, Etawah. It is submitted that the applicant alongwith her minor child is residing with her aged parents at Ghaziabad and distance between Ghaziabad to Etawah is more than 300 kilometres and applicant has no source of income to meet the litigation expenses and other expenses which is to be incurred in travelling from Ghaziabad to Etawah to contest the case instituted by opposite party at Etawah on each and every date fixed in the matter. It is further submitted that no amount towards maintenance is being paid to the applicant by the opposite party. Thus, the submission is that if the case is allowed to be proceeded at Etawah, applicant would suffer serious prejudice.

4. Matter requires consideration.

5. Issue notice to respondent/opposite party returnable at an early date.

6. Steps by both modes i.e. ordinary post as well as R.P./A.D. be taken for service of notice upon respondent/opposite party within ten days.

7. Opposite party is granted four weeks time to file counter affidavit.

8. List on 03.01.2024.

9. In case steps are not taken within the aforesaid period, the matter shall be listed under Chapter XII Rule 4 of the Allahabad High Court Rules immediately after expiry of ten days.

10. Until further orders of this Court, further proceeding of Case No.550 of 2021 (Gaurav Yadav Vs. Smt. Rekha Yadav), under Section 13 of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Etawah shall remain stayed. "

5. Learned counsel for the applicant submitted that the proceeding between the parties are pending at District- Ghaziabad, as such, the proceeding under Section 13 of Hindu Marriage Act should be transferred from Principal Judge, Family Court, Etawah to Family Court, Ghaziabad. He placed the averment made in paragraph nos.16 to 18 of the affidavit filed in support of the instant transfer application in order to demonstrate that the proceeding of Hindu Marriage Act initiated by opposite party/ husband should be 3 TACL No. 868 of 2023 transferred from the Court of Principle Judge, Family Court, Etawah to Family Court, Ghaziabad.

7. Learned counsel for the opposite party submitted that the opposite party/ husband has no objection to the prayer made by the applicant to transfer the proceeding of Hindu Marriage Act from Principle Judge, Family Court, Etawah to Family Court, Ghaziabad.

8. I have considered the argument advanced by leaned counsel for the parties and perused the records.

9. There is no dispute about the fact that the proceeding under Section 13 of Hindu Marriage Act is pending before Family Court, Etawah.

10. In order to appreciate the controversy involved in the matter, perusal of paragraph nos.16 to 18 of the affidavit filed in support of the instant transfer application will be relevant which are as under: "16. That the applicant is fully unemployed and there is no source of income of the applicant. The applicant and her child are fully dependent on the parents of applicant and at present time, the applicant is residing alongwith her parents at her mother's house, therefore, she is unable to attend the proceedings of divorce petition at District Judgeship, Etawah.

17. That the distance between the District Judgeship, Etawah and the house of the applicant is approximate 320 KM and there is no source of income of the applicant and also she is unable to attend the proceedings of divorce petition alongwith her child at District Judgeship, Etawah.

18. That the opposite party is threatening to the applicant for facing serious consequence, when she will come at Etawah for attending the proceedings of divorce petition before the Court concern at Etawah and therefore, due to reason aforesaid, the life of the applicant and her child is in danger and therefore, she is unable to attend the court before the District Judgeship, Etawah."

11. The perusal of the paragraph nos.16 to 18 of the affidavit as quoted above demonstrate that prayer of the applicant for transfer of proceeding under Section 13 of Hindu Marriage Act from Principle 4 TACL No. 868 of 2023 Judge, Family Court, Etawah to Family Court, Ghaziabad is genuine coupled with the fact that opposite party / husband has no objection to the prayer of transfer made by applicant/ wife.

12. Apex Court in the case reported in (2016) 14 Supreme Court Cases 356, Vaishali Shridhar Jagtap vs. Sridhar Vishwanath Jagtap has transferred the proceeding of divorce petition filed by husband to the place where wife reside. Paragraph nos.1 to 7 of the judgement 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, 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." 5 TACL No. 868 of 2023

13. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of Divorce Petition No.550 of 2021 (Gaurav Yadav vs. Rekha Yadav), under Section 13 of Hindu Marriage Act pending in the Court of Principle Judge, Family Court, Etawah transferred to Family Court, Ghaziabad. The Family Court, Etawah is directed to transmit the record of the case to Family Court, Ghaziabad forthwith. The Family Court, Ghaziabad is directed to decide the aforementioned proceeding of Divorce Petition No.550 of 2021 (Gaurav Yadav vs. Rekha Yadav), under Section 13 of Hindu Marriage Act accordance with law after affording proper opportunity of hearing to the parties, expeditiously preferably within a period of six months from the date of production of certified copy of this order. September 17, 2025 Rameez (Chandra Kumar Rai,J.) RAMEEZ AHMED High Court of Judicature at Allahabad