Arpit Pandey v. Hema) under Section
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD TRANSFER APPLICATION (CIVIL) No. - 422 of 2024 Smt Hema Arpit Pandey Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Kamlesh Kumar Mishra : Kamlendra Singh Jadaun Court No. - 37 HON'BLE CHANDRA KUMAR RAI, J. 1. Heard Mr. Kamlesh Kumar Mishra, learned counsel for the applicant/wife and Mr. Kamlendra Singh Jadaun, learned counsel for opposite party/ husband. 2. Brief facts of the case are that proceeding under Section 13 (1) (1A) of the Hindu Marriage Act initiated at the instance of opposite party/ husband is pending in the Family Court Gautam Budhha Nagar. 3. The instant transfer application has been filed for the following relief:- "It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and transfer the matrimonial case No. 1836 of 2023 (Arpit Pandey Vs. Hema) under Section 13 (1) (1A) of the Hindu Marriage Act from the Court of Principal Judge, Family Court, Gautam Buddha Nagar to competent Court of District Gorakhpur. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of aforesaid matrimonial case No. 1836 of 2023 (Arpit Pandey Vs. Hema) under Section 13 (1) (1A) of Hindu Marriage Act, pending in the Court of Principal Judge Family Court Gautam Buddha Nagar, during the pendency of the transfer application before this Hon'ble Court." 2 TACL No. 422 of 2024 4. This Court entertained the matter on 31.5.2024 and stayed the further proceeding of matrimonial case No. 1836 of 2023 which is quoted as under ;-
Legal Reasoning
"Heard Sri Kamlesh Kumar Mishra, learned counsel for the applicant and perused the record. This transfer application has been filed by the applicant seeking transfer of Matrimonial Case No.1836 of 2023 (Arpit Pandey Vs. Hema) filed under Section 13(1)(1A) of Hindu Marriage Act from the court of Principal Judge, Family Court, Gautam Buddha Nagar to the competent court of District Gorakhpur. It is submitted by learned counsel for the applicant that it is a matrimonial dispute between the parties. The applicant wife is presently residing in district Gorakhpur. The applicant had filed an application under Section 125 Cr.P.C. claiming maintenance in the court of Principal Judge, Family Court, Gorakhpur which was registered as Case No.157 of 2024. The present divorce petition has been filed by respondent husband on altogether incorrect facts in the court of Principal Judge, Family Court, Gautam Buddha Nagar only to harass the applicant. The district Gautam Buddha Nagar is much away from the District Gorakhpur. Lastly it is submitted that the applicant being deserted wife of respondent having no source of income is facing great hardship to attend the court proceedings before the Principal Judge, Family Court, Gautam Buddha Nagar. Matter requires consideration. Issue notice to respondent. Steps be taken within a week by registered post. List after two months. 5. In pursuance of the order dated 31.5.2024, opposite party/ husband has put in appearance through Mr. Kamlendra Singh 3 TACL No. 422 of 2024 Jadaun, learned counsel. 6. Counsel for the applicant submitted that in view of the pendency of the proceeding between the parties at Gorakhpur, the proceeding of divorce initiated by opposite party/ husband should be transferred from Gautam Buddha Nagar to Gorakhpur. He further placed the averment made in paragraph nos. 16, 17, 18, 19 and 20 of the affidavit filed in support of the instant transfer application. 7. On the other hand, learned counsel for the opposite party/ husband submitted that opposite party/ husband has no objection to the prayer of transfer made by applicant/ wife. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that proceeding under Section 13 (1)(1A) of the Hindu Marriage Act filed by opposite party/ husband is pending in the Court of Principal Judge, Family Court Gautam Buddha Nagar. 10. In order to appreciate the controversy involved in the matter, the perusal of paragraph Nos. 16, 17, 18, 19 and 20 of the affidavit will be relevant which are as under:- "16. That, it is relevant to mention here that the applicant is a housewife and she has also a child of 16 months and she is continuously threatened by the opposite party, thus she is not in position to go NOIDA for the proper pairvi of the above said case. 17. That, the distance between NOIDA to Gorakhpur is about 800 K.M. and thus it will not be convenient for a mother having to 16 months old child travel from Gorakhpur to NOIDA on every dates for the pairvi of the case. 18. That, the applicant is helpless lady as it is very difficult for her to travel from Gorakhpur to NOIDA because life of the applicant and her child are in danger in NOIDA. 19. That, in number of the cases, the Hon'ble Supreme Court held that it is the wife 4 TACL No. 422 of 2024 convenient which will be looked. 20. That, applicant is living in Gorakhpur, and she has also filed a maintenance case in Gorakhpur, so the case pending in NOIDA filed by the opposite party may be transferred to Gorakhpur for the convenience of wife." 11. In view of the averments made in the affidavit filed in support of the transfer application as quoted above coupled with the fact that opposite party/ husband has no objection to the prayer of transfer made by the applicant/ wife, the instant transfer application should be allowed. 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. Paragraph No.1 to 7 of the judgment rendered in Vaishali Shridhar Jagtap (Supra) will be relevant for perusal which are as under :- "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 5 TACL No. 422 of 2024 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 case No. 1836 of 2023 under Section 13 (1) (1A) of the Hindu Marriage Act (Arpit Pandey Vs. Hema) pending in the Court of Principal Judge Family Court Gautam Buddha Nagar is transferred to Principal Judge Family Court Gorakhpur. The Family Court Gautam Buddha Nagar is directed to transmit the records of case No. 1836 of 2023 under Section 13 (1) (1A) of the Hindu Marriage Act to the Court of Principal Judge Family Court Gorakhpur. The Family Court Gorakhpur, is directed to decide the case No. 1836 of 2023 under Section 13 (1) (1A) of the Hindu Marriage Act expeditiously, after affording opportunity of hearing to the parties. August 23, 2025 Vandana Y. (Chandra Kumar Rai,J.) Digitally signed by :- VANDANA YADAV High Court of Judicature at Allahabad