This transfer application under Section 24 of the Code of Civil Procedure has been filed seeking transfer of Matrimonial Case No. 773 of 2020 under Section 9 of the Hindu Marriage Act from the Court of the Principal Judge, Family Court, Gautam Buddh Nagar to the Court of competent jurisdiction at Gorakhpur.
It appears that the applicant and the opposite party are an estranged couple. They were married according to Hindu rites on 31.10.2019. It is made out that after marriage, the husband Nishant Srivastava and his family members treated the applicant-wife with cruelty in connection with demand of dowry. The applicant's father tried to reason out with the applicant's in-laws, but to no avail. The applicant was thrown out from her matrimonial home on 12.03.2020.
The opposite party has filed a petition under Section 9 of the Hindu Marriage Act before the Principal Judge, Family Court, Gautam Buddh Nagar, numbered as Matrimonial Case No. 773 of 2020. The applicant acquired knowledge of these proceedings, where the date fixed was 16.12.2020.
It is urged on behalf of the applicant by Mr. Ashok Kumar Giri, Advocate holding brief of Mr. Arvind Prabodh Dubey, learned counsel for the applicant that the opposite party is a person with questionable antecedents and there is every likelihood of the applicant being harassed, in case she is compelled to attend proceedings at Gautam Buddh Nagar. It is further argued that the applicant resides with her old and ailing mother. The distance between Gautam Buddh Nagar and Gorakhpur is about 800 Kms. It is further urged that it is not possible for the applicant to appear on every date before the Court at Gautam Buddh Nagar, given her feeble circumstances. It is also urged that the applicant is not in any gainful employment and has no source of livelihood. She is wholly dependent upon her old and ailing mother, who is not in a position to act as escort to accompany her to Gautam Buddh Nagar, travelling on every date from Gorakhpur. The applicant's father has passed away on 14.08.2020 due to a heart attack. The applicant's brother does not take care of his mother or the applicant. He lives separately with his family. There are no male members in the family, or even female members in good health and strength, who could proceed to pursue the case on behalf of the applicant at Gautam Buddh Nagar. It is further argued that the opposite party is employed with a private Multinational Company and receives good remuneration. He is an able bodied man quite capable to defend the case at Gorakhpur. It is further urged that in the interest of justice, proceedings pending at Gautam Buddh Nagar be transferred to the Court at Gorakhpur.
Service upon the opposite party-husband has been held sufficient vide order dated 22.02.2021 passed by this Court. When the case is called on, no one appears on behalf of the opposite party nor any counter affidavit has been filed.
The allegations in the affidavit filed in support of the transfer application have, therefore, to be treated as un-rebutted.
This Court has perused the record and given a thoughtful consideration to the contentions raised. From what appears on record, the applicant, who is a woman, is not gainfully employed or professionally trained and stays at her parent's home with her mother, who is old and ailing. Her father has recently passed away. She has no independent source of income nor a dependable physical support. Here, the circumstances apparently do not permit the applicant, financially or physically, to effectively defend proceedings at a station located 800 Kms. away from her ordinary place of residence.
This Court is convinced that in case the applicant is driven to contest proceedings at Gautam Buddh Nagar, she would suffer prejudice in the matter of defending proceedings effectively. Requiring her to travel to Gautam Buddh Nagar from Gorakhpur on every date, would also entail contingent expenditure, besides exertion of a kind and other associated dislocation in the daily routine, which would unduly burden her not so broad shoulders. The applicant cannot bear this burden. The husband appears to be gainfully employed and is an able bodied man. He can conveniently attend proceedings at Gorakhpur, if the case is transferred there. In the opinion of this Court, a case for transfer is well made out.
The transfer application succeeds and is allowed. The proceedings of Matrimonial Case No. 773 of 2020 Nishant Srivastava vs. Amritanshu Srivastava pending before the Principal Judge, Family Court, Gautam Buddh Nagar are hereby transferred to the Principal Judge, Family Court, Gorakhpur, who shall proceed to try the case himself, or assign it to an Additional Principal Judge, part of the Family Court at Gorakhpur.
Order Date :- 16.8.2021 Deepak