Shobharam v. Smt. Mamta Devi U/S

1. Heard learned counsel for the applicant-wife and Mr. Shreesh Srivastava, learned counsel for the opposite party-husband.

2. Brief facts of the case are that applicant is a wife and opposite is a husband. Proceeding under Section 13(1) of Hindu Marriage Act, initiated at the instance of opposite party/husband is pending in the Family Court, Aligarh. Hence, the instant transfer application for the following relief:- "It is, therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and transfer Marriage Petition No.1462 of 2023, Shobharam Vs. Smt. Mamta Devi U/S 13(1) Hindu Marriage Act 1955 pending in the Court of Principal Judge Family Court Aligarh District Aligarh, Transfer case from District Aligarh to District Kanpur Dehat or any other District. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Marraige Petition No.1462 of 2023, Shobharam Vs. Smt. Mamta Devi U/S 13(1) Hindu Marriage Act, Police Station- Harduaganj, District- Aligarh pending in the Court of Principal Judge Family Court, Aligarh, District- Aligarh."

3. This Court entertained the matter on 30.11.2023 and stayed the further proceeding of the case. The order dated 30.11.2023 is quoted 2 TACL No. 924 of 2023 as under: "1. Heard learned counsel for the applicant.

2. The present application has been filed by the applicant-wife seeking transfer of Case No.1462 of 2023 (Shobharam Vs. Smt. Mamta Devi), under Section 13(1) of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Aligarh to the court of Principal Judge, Family Court, Kanpur Dehat.

3. It is submitted by the learned counsel for the applicant that a proceeding under Section 12 of Domestic Violence Act has been instituted by the applicant against the opposite party at Kanpur Dehat whereas opposite party has instituted the divorce petition at Aligarh. It is submitted that the applicant is a Government Teacher and is residing alongwith her minor son with her aged parents at Kanpur Dehat and distance between Kanpur Dehat to Aligarh is about 280 kilometres and it is very difficult for the applicant to contest the case at Aligarh alongwith her minor son on each and every date fixed in the matter. Thus, the submission is that if the case is allowed to be proceeded at Aligarh, 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 01.02.2024.

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.1462 of 2023 (Shobharam Vs. Smt. Mamta Devi), under Section 13(1) of Hindu Marriage Act pending in the court of Principal Judge, Family Court, 3 TACL No. 924 of 2023 Aligarh shall remain stayed."

4. In pursuance of the order dated 30.11.2023, opposite party has put in appearance and filed his counter affidavit.

5. Learned counsel for the applicant submitted that proceeding of case under Section 13 (1) of Hindu Marriage Act initiated by the opposite party-husband should be transferred from Aligarh to the competent court at Kanpur Dehat. He further placed paragraph Nos.14 to 20 of the affidavit filed in support of the instant transfer application in order to demonstrate that proceeding of case under Section 13(1) of Hindu Marriage Act should be transferred from Aligarh to Kanpur Dehat.

6. Learned counsel for the opposite party submitted that opposite party/ husband has no objection if the pending proceeding of the case, initiated by opposite party/husband, is transferred from Aligarh to Kanpur Dehat so that the pending proceeding can be decided expeditiously.

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

8. There is no dispute about the fact that proceeding under Section 13(1) of Hindu Marriage Act initiated by opposite party/husband is pending at Family Court, Aligarh.

9. In order to appreciate the controversy, perusal of paragraph nos.14 to 20 of the affidavit filed in support of the instant transfer application will be relevant which are as under:- "14. That the Opp. Party with ill motive as well as save himself filed the present divorce petition before the District Aligarh with intention to harassing her.

15. That the applicant is single lady who is taking care of her baby without any support of her husband and he is threatening that if she will not leave him then she has to face consequences and he will spoil her whole life and will take her child. 4 TACL No. 924 of 2023

16. That it is also pertinent to mention here that one case which is filed by the applicant has already pending before the District Kanpur Dehat and if Hon'ble Court may graciously be pleased to transfer the aforesaid divorce petition at District Kanpur Dehat then she has easily made pairvi of the above case.

17. That the applicant had not in a position to visit District Aligarh to attend the court proceeding as she has might apprehension that the Opp. Party might committing marpeet with her.

18. That the applicant is not able to travel from the District Kanpur Dehat to Aligarh as distance between the Aligarh to Kanpur Dehat approximately 280 km. and she is unfortunate lady and unable to travel from the Kanpur Dehat to Aligarh and attend the court proceeding and due to this reason she has filing the present transfer application before this Hon'ble Court for transfer aforesaid case from District Aliagrh to District Kanpur Dehat.

19. That the applicant has also apprehension that if applicant went to District Court Aligarh then the Opp. Party might beaten her as well as harass her with the help of miscreants.

20. That in the interest of justice it is expedient in the interest of justice that this case has been transfer from District Aligarh to District Kanpur Dehat."

10. Perusal of paragraphs Nos.14 to 20 of the affidavit filed in support of the instant application as quoted above demonstrate that prayer regarding transfer of the proceeding from Aligarh to Kanpur Dehat at the instance of applicant/wife is genuine coupled with the fact that opposite party/husband has no objection to the prayer of transfer made by the applicant.

11. The 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 5 TACL No. 924 of 2023 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, 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."

12. Considering the entire facts and circumstances of the case as well as the ratio of law laid down by the Apex Court in Vaishali Shridhar Jagtap (supra), the instant transfer application is allowed. The proceeding of Case No.1462/2023 (Shobharam vs. 6 TACL No. 924 of 2023 Smt. Mamta Devi), under Section 13 (1) of Hindu Marriage Act, pending in the court of Principal Judge, Family Court, Aligarh is transferred to Kanpur Dehat. The Family Court, Aligarh is directed to transmit the record of the case to the Family Court at Kanpur Dhat forthwith. The Family Court, Kanpur Dehat is directed to conclude the aforementioned matrimonial proceeding to its logical conclusion as expeditiously as possible, preferably within a period of 6 months from the date of production of certified copy of this order, after affording opportunity of hearing to both the parties, in accordance with law. September 10, 2025 C.Prakash (Chandra Kumar Rai,J.) CHANDRA PRAKASH High Court of Judicature at Allahabad

1. Heard learned counsel for the applicant-wife and Mr. Shreesh Srivastava, learned counsel for the opposite party-husband.

2. Brief facts of the case are that applicant is a wife and opposite is a husband. Proceeding under Section 13(1) of Hindu Marriage Act, initiated at the instance of opposite party/husband is pending in the Family Court, Aligarh. Hence, the instant transfer application for the following relief:- "It is, therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and transfer Marriage Petition No.1462 of 2023, Shobharam Vs. Smt. Mamta Devi U/S 13(1) Hindu Marriage Act 1955 pending in the Court of Principal Judge Family Court Aligarh District Aligarh, Transfer case from District Aligarh to District Kanpur Dehat or any other District. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Marraige Petition No.1462 of 2023, Shobharam Vs. Smt. Mamta Devi U/S 13(1) Hindu Marriage Act, Police Station- Harduaganj, District- Aligarh pending in the Court of Principal Judge Family Court, Aligarh, District- Aligarh."

3. This Court entertained the matter on 30.11.2023 and stayed the further proceeding of the case. The order dated 30.11.2023 is quoted 2 TACL No. 924 of 2023 as under: "1. Heard learned counsel for the applicant.

2. The present application has been filed by the applicant-wife seeking transfer of Case No.1462 of 2023 (Shobharam Vs. Smt. Mamta Devi), under Section 13(1) of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Aligarh to the court of Principal Judge, Family Court, Kanpur Dehat.

3. It is submitted by the learned counsel for the applicant that a proceeding under Section 12 of Domestic Violence Act has been instituted by the applicant against the opposite party at Kanpur Dehat whereas opposite party has instituted the divorce petition at Aligarh. It is submitted that the applicant is a Government Teacher and is residing alongwith her minor son with her aged parents at Kanpur Dehat and distance between Kanpur Dehat to Aligarh is about 280 kilometres and it is very difficult for the applicant to contest the case at Aligarh alongwith her minor son on each and every date fixed in the matter. Thus, the submission is that if the case is allowed to be proceeded at Aligarh, 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 01.02.2024.

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.1462 of 2023 (Shobharam Vs. Smt. Mamta Devi), under Section 13(1) of Hindu Marriage Act pending in the court of Principal Judge, Family Court, 3 TACL No. 924 of 2023 Aligarh shall remain stayed."

4. In pursuance of the order dated 30.11.2023, opposite party has put in appearance and filed his counter affidavit.

5. Learned counsel for the applicant submitted that proceeding of case under Section 13 (1) of Hindu Marriage Act initiated by the opposite party-husband should be transferred from Aligarh to the competent court at Kanpur Dehat. He further placed paragraph Nos.14 to 20 of the affidavit filed in support of the instant transfer application in order to demonstrate that proceeding of case under Section 13(1) of Hindu Marriage Act should be transferred from Aligarh to Kanpur Dehat.

6. Learned counsel for the opposite party submitted that opposite party/ husband has no objection if the pending proceeding of the case, initiated by opposite party/husband, is transferred from Aligarh to Kanpur Dehat so that the pending proceeding can be decided expeditiously.

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

8. There is no dispute about the fact that proceeding under Section 13(1) of Hindu Marriage Act initiated by opposite party/husband is pending at Family Court, Aligarh.

9. In order to appreciate the controversy, perusal of paragraph nos.14 to 20 of the affidavit filed in support of the instant transfer application will be relevant which are as under:- "14. That the Opp. Party with ill motive as well as save himself filed the present divorce petition before the District Aligarh with intention to harassing her.

15. That the applicant is single lady who is taking care of her baby without any support of her husband and he is threatening that if she will not leave him then she has to face consequences and he will spoil her whole life and will take her child. 4 TACL No. 924 of 2023

16. That it is also pertinent to mention here that one case which is filed by the applicant has already pending before the District Kanpur Dehat and if Hon'ble Court may graciously be pleased to transfer the aforesaid divorce petition at District Kanpur Dehat then she has easily made pairvi of the above case.

17. That the applicant had not in a position to visit District Aligarh to attend the court proceeding as she has might apprehension that the Opp. Party might committing marpeet with her.

18. That the applicant is not able to travel from the District Kanpur Dehat to Aligarh as distance between the Aligarh to Kanpur Dehat approximately 280 km. and she is unfortunate lady and unable to travel from the Kanpur Dehat to Aligarh and attend the court proceeding and due to this reason she has filing the present transfer application before this Hon'ble Court for transfer aforesaid case from District Aliagrh to District Kanpur Dehat.

19. That the applicant has also apprehension that if applicant went to District Court Aligarh then the Opp. Party might beaten her as well as harass her with the help of miscreants.

20. That in the interest of justice it is expedient in the interest of justice that this case has been transfer from District Aligarh to District Kanpur Dehat."

10. Perusal of paragraphs Nos.14 to 20 of the affidavit filed in support of the instant application as quoted above demonstrate that prayer regarding transfer of the proceeding from Aligarh to Kanpur Dehat at the instance of applicant/wife is genuine coupled with the fact that opposite party/husband has no objection to the prayer of transfer made by the applicant.

11. The 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 5 TACL No. 924 of 2023 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, 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."

12. Considering the entire facts and circumstances of the case as well as the ratio of law laid down by the Apex Court in Vaishali Shridhar Jagtap (supra), the instant transfer application is allowed. The proceeding of Case No.1462/2023 (Shobharam vs. 6 TACL No. 924 of 2023 Smt. Mamta Devi), under Section 13 (1) of Hindu Marriage Act, pending in the court of Principal Judge, Family Court, Aligarh is transferred to Kanpur Dehat. The Family Court, Aligarh is directed to transmit the record of the case to the Family Court at Kanpur Dhat forthwith. The Family Court, Kanpur Dehat is directed to conclude the aforementioned matrimonial proceeding to its logical conclusion as expeditiously as possible, preferably within a period of 6 months from the date of production of certified copy of this order, after affording opportunity of hearing to both the parties, in accordance with law. September 10, 2025 C.Prakash (Chandra Kumar Rai,J.) CHANDRA PRAKASH High Court of Judicature at Allahabad