Rahul Rai v. Shalini Rai) from the court of Principal Judge Family Court Sant Kabir Nagar to

1. Heard counsel for the applicant/wife and Mr. Amit Kumar Singh, learned counsel for opposite party/ husband.

2. Brief facts of the case are that applicant is wife and opposite party is husband. A petition under Section 13 of the Hindu Marriage Act, 1955 filed on behalf of the opposite party/husband is pending in the Family Court at Sant Kabir 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 transfer the case no.162 of 2024 under section 13 of Hindu Marriage Act, 1955 (Rahul Rai Versus Shalini Rai) from the court of Principal Judge Family Court Sant Kabir Nagar to Principal Judge Family Court Gorakhpur in the interest of justice, otherwise applicant will suffer irreparable loss and injury. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of case no.162 of 2024 under section 13 of Hindu Marriage Act, 1955 (Rahul Rai Versus Shalini Rai) pending before Principal Judge Family Court Sant Kabir Nagar, during the pendency of the transfer application before this Hon'ble Court, as it is desirable in the interest of justice."

4. This Court entertained the matter on 9.9.2024 and stayed the further proceeding of divorce petition which is quoted as under ;- "Heard Sri Azad Rai, learned counsel for the applicant and perused the record. This transfer application has been filed by the applicant seeking transfer of Case No.162 of 2024 (Rahul Rai Vs. Shalini Rai) filed under Section 13 of Hindu Marriage Act from the court of Principal Judge, Family Court, Sant Kabir Nagar to the court of Principal Judge, Family Court, 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 has filed a complaint under Section 12 of Domestic Violence Act in the court of Civil Judge (S.D.-Ist), Gorakhpur which was registered as Complaint Case No.30448 of 2024. The applicant has also filed an application claiming maintenance under Section 144 Bharti Nagrik Suraksha Sanhita, 2023 in the court of Principal Judge, Family Court, Gorakhpur which was registered as Case No.768 of 2024. Both the cases filed by applicant are pending in the judgeship of Gorakhpur and the aforesaid divorce petition has been filed by opposite party on altogether incorrect facts in the court of Principal Judge, Family Court, Sant Kabir Nagar only to harass the applicant. The district Sant Kabir Nagar is much away from the district Gorakhpur. Lastly it is submitted that the applicant being deserted wife of opposite party having no source of income is facing great hardship to attend the court proceedings before the Principal Judge, Family Court, Sant Kabir Nagar. Matter requires consideration. Issue notice to opposite party. Steps be taken within a week by registered post. List after two months. Until further order, the further proceedings of Case No.162 of 2024 (Rahul Rai Vs. Shalini Rai) filed under Section 13 of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Sant Kabir Nagar, shall remain stayed. "

5. In pursuance of the order dated 9.9.2024, counter affidavit has been filed on behalf of opposite party/husband.

6. Counsel for the applicant submitted that in view of the pendency of the cases between the parties at Gorakhpur, the proceeding of case No. 162 of 2024 under Section 13 of the Hindu Marriage Act filed by opposite party/ husband in the Family Court Sant Kabir Nagar should be transferred to Gorakhpur. He further placed the averment made in paragraph Nos. 17 and 18 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 divorce petition under Section 13 of the Hindu Marriage Act filed by opposite party/ husband is pending in the Court of Principal Judge, Family Court Sant Kabir Nagar.

10. In order to appreciate the controversy involved in the matter, the perusal of paragraph Nos. 17 and 18 of the affidavit will be relevant which are as under:- "17. That the applicant has no one with whom she can go and stay in District Gorakhpur thus it is necessary in the interest of justice to transfer the aforesaid cased from District Sant Kabir Nagar to District Gorakhpur in any Court.

18. That it is well settled way of the Hon'ble Court that the matrimonial dispute should be resolved whereby the lady resides on her choice of convenience, as such, the present case is also liable to be transferred from District Sant Kabir Nagar to District Gorakhpur."

11. In view of the averment 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 and 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 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. 162 of 2024 under Section 13 of the Hindu Marriage Act, 1955 (Rahul Rai Vs. Shalini Rai) pending in the Court of Principal Judge Family Court Sant Kabir Nagar is transferred to Principal Judge Family Court Gorakhpur. The Family Court Sant Kabir Nagar is directed to transmit the records of case No. 162 of 2024 to the Court of Principal Judge Family Court Gorakhpur. The Family Court Gorakhpur, is directed to decide the Case No.162 of 2024 under Section 13 of the Hindu Marriage Act, 1955, expeditiously, after affording opportunity of hearing to the parties. Order Date :- 18.8.2025 Vandana Y. VANDANA YADAV High Court of Judicature at Allahabad

1. Heard counsel for the applicant/wife and Mr. Amit Kumar Singh, learned counsel for opposite party/ husband.

2. Brief facts of the case are that applicant is wife and opposite party is husband. A petition under Section 13 of the Hindu Marriage Act, 1955 filed on behalf of the opposite party/husband is pending in the Family Court at Sant Kabir 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 transfer the case no.162 of 2024 under section 13 of Hindu Marriage Act, 1955 (Rahul Rai Versus Shalini Rai) from the court of Principal Judge Family Court Sant Kabir Nagar to Principal Judge Family Court Gorakhpur in the interest of justice, otherwise applicant will suffer irreparable loss and injury. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of case no.162 of 2024 under section 13 of Hindu Marriage Act, 1955 (Rahul Rai Versus Shalini Rai) pending before Principal Judge Family Court Sant Kabir Nagar, during the pendency of the transfer application before this Hon'ble Court, as it is desirable in the interest of justice."

4. This Court entertained the matter on 9.9.2024 and stayed the further proceeding of divorce petition which is quoted as under ;- "Heard Sri Azad Rai, learned counsel for the applicant and perused the record. This transfer application has been filed by the applicant seeking transfer of Case No.162 of 2024 (Rahul Rai Vs. Shalini Rai) filed under Section 13 of Hindu Marriage Act from the court of Principal Judge, Family Court, Sant Kabir Nagar to the court of Principal Judge, Family Court, 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 has filed a complaint under Section 12 of Domestic Violence Act in the court of Civil Judge (S.D.-Ist), Gorakhpur which was registered as Complaint Case No.30448 of 2024. The applicant has also filed an application claiming maintenance under Section 144 Bharti Nagrik Suraksha Sanhita, 2023 in the court of Principal Judge, Family Court, Gorakhpur which was registered as Case No.768 of 2024. Both the cases filed by applicant are pending in the judgeship of Gorakhpur and the aforesaid divorce petition has been filed by opposite party on altogether incorrect facts in the court of Principal Judge, Family Court, Sant Kabir Nagar only to harass the applicant. The district Sant Kabir Nagar is much away from the district Gorakhpur. Lastly it is submitted that the applicant being deserted wife of opposite party having no source of income is facing great hardship to attend the court proceedings before the Principal Judge, Family Court, Sant Kabir Nagar. Matter requires consideration. Issue notice to opposite party. Steps be taken within a week by registered post. List after two months. Until further order, the further proceedings of Case No.162 of 2024 (Rahul Rai Vs. Shalini Rai) filed under Section 13 of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Sant Kabir Nagar, shall remain stayed. "

5. In pursuance of the order dated 9.9.2024, counter affidavit has been filed on behalf of opposite party/husband.

6. Counsel for the applicant submitted that in view of the pendency of the cases between the parties at Gorakhpur, the proceeding of case No. 162 of 2024 under Section 13 of the Hindu Marriage Act filed by opposite party/ husband in the Family Court Sant Kabir Nagar should be transferred to Gorakhpur. He further placed the averment made in paragraph Nos. 17 and 18 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 divorce petition under Section 13 of the Hindu Marriage Act filed by opposite party/ husband is pending in the Court of Principal Judge, Family Court Sant Kabir Nagar.

10. In order to appreciate the controversy involved in the matter, the perusal of paragraph Nos. 17 and 18 of the affidavit will be relevant which are as under:- "17. That the applicant has no one with whom she can go and stay in District Gorakhpur thus it is necessary in the interest of justice to transfer the aforesaid cased from District Sant Kabir Nagar to District Gorakhpur in any Court.

18. That it is well settled way of the Hon'ble Court that the matrimonial dispute should be resolved whereby the lady resides on her choice of convenience, as such, the present case is also liable to be transferred from District Sant Kabir Nagar to District Gorakhpur."

11. In view of the averment 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 and 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 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. 162 of 2024 under Section 13 of the Hindu Marriage Act, 1955 (Rahul Rai Vs. Shalini Rai) pending in the Court of Principal Judge Family Court Sant Kabir Nagar is transferred to Principal Judge Family Court Gorakhpur. The Family Court Sant Kabir Nagar is directed to transmit the records of case No. 162 of 2024 to the Court of Principal Judge Family Court Gorakhpur. The Family Court Gorakhpur, is directed to decide the Case No.162 of 2024 under Section 13 of the Hindu Marriage Act, 1955, expeditiously, after affording opportunity of hearing to the parties. Order Date :- 18.8.2025 Vandana Y. VANDANA YADAV High Court of Judicature at Allahabad