Court No. - 1 Reserved
Case :- TRANSFER APPLICATION (CIVIL) No. - 296 of 2020 Applicant :- Smt. Gajala Parveen Opposite Party :- Sri Khaaluddin Khan @ Khalid Hashmi Counsel for Applicant :- Amit Srivastava,Narayan Singh(Kushwaha) Counsel for Opposite Party :- Sudhanshu Pandey
Hon'ble J.J. Munir,J.
1. The applicant has moved this Court under Section 24 of the Code of Civil Procedure, seeking transfer of Pure Misc. Case no.7 of 2019, Khaaluddin Khan vs. Gajala Parveen, under Sections 10, 12, 25 of the Guardians and Wards Act, 1890 from the Principal Judge, Family Court, Aligarh to the Principal Judge, Family Court, Etah.
2. Heard Mr. Narayan Singh (Kushwaha), learned Counsel for the applicant and Mr. Sudhanshu Pandey, learned Counsel appearing on behalf of the sole opposite party.
3. The applicant and the opposite party were married according to Muslim rites on 20.10.2013. A child was born to the parties on 24.07.2014. Eschewing a reference to much about the matrimonial dispute between parties, suffice it to say that two became an estranged couple after the birth of their child with the wife staying with her father at Etah. It is pointed out that three cases are pending before the Courts at Etah, brought at the instance of the wife: the first of these is a criminal case being Case no.11816 of 2016, State vs. Khalid Hashmi and others, under Sections 323, 504, 506, 498A IPC and Section 3/4 of the Dowry Prohibition Act, Police Station Kotwali Nagar, District Etah; the second being an application under Section 12 of the Domestic Violence Act; and, the third an application for maintenance under Section 125 Cr.P.C.
4. The opposite party has instituted P.M. Case no.7 of 2019 before the Principal Judge, Family Court, Aligarh, asking for the custody of the parties' minor son. It is asserted by the applicant that when she went over to Aligarh with her father to defend these proceedings under the Guardians and Wards Act, the opposite party, along with a host of his companions, threatened to do the applicant and her father to death. They assaulted her father, delivering blows and employing sticks. In this regard, N.C.R. no.14 of 2019, under Sections 323, 504, 506 IPC, Police Station Quarsi, District Aligarh, has been lodged. It is urged that the applicant has a serious threat perception about injury to her life and limb in case she is forced to defend these proceedings at Aligarh. At the same time, it is pointed out that the distance between the two stations is 90 kilometers and it is not possible for the applicant to defend effectively, appearing before the Aligarh Court on every date, given her circumstances. It is also asserted that the applicant has no source of livelihood and is dependent upon her father, who is an old man.
5. Learned Counsel for the opposite party, Mr. Sudhanshu Pandey has vehemently opposed the prayer. He says that distance between the two stations is not much and the evidence about assault etc. is all concocted.
6. This Court has considered the rival submissions and perused the record.
7. It is true that there is an N.C.R. about the incident of assault, involving the applicant and her father, when they went to defend proceedings at Aligarh. Regarding this incident, not only an N.C.R. Has been registered with the Police, but there is also a medico-legal report dated 04.03.2019, indicating that the applicant sustained five injuries, all of which are contusions. The injuries have been found to be simple, but the case of assault is certainly a very tangible evidence, that can give rise to a reasonable apprehension in the applicant's mind about the safety and security while she goes to defend proceedings at Aligarh. In paragraph no.20 of the counter affidavit, the case of assault has been repudiated and the injury report is said to be false.
8. It is not this Court's province in a transfer matter to go into the veracity of the allegations carried in the N.C.R. or the worth of the medico-legal report. In the opinion of the Court, it is evidence enough for this Court to believe that the applicant's safety might be seriously jeopardized, if she is forced to attend at Aligarh. It also figures that the applicant has no source of income and stays with her father, who has to act as her escort on every date that she has to attend proceedings at Aligarh. These circumstances of the applicant do warrant a transfer to the place where the applicant stays. It is also to be borne in mind that there are three cases already pending at Etah and if the proceedings of the present case are transferred from Aligarh to District Etah, the parties can conveniently request the Court concerned for a common date in all four matters. In any event, the husband has to come over to Etah to contest the three cases pending there. Therefore, on a comparison of the hardship, the scales definitely tip in favour of transferring the proceedings from Aligarh to Etah.
9. In this connection, reference may be made to the decision of the Supreme Court in Bhartiben Ravibhai Rav v. Ravibhai Govindbhai Rav, (2017) 6 SCC 785, where it has been held:
“4. Apart from the divorce petition, there are other proceedings pending between the parties which have been filed by the petitioner wife at Dungarpur, Rajasthan viz. (i) FIR under Sections 498-A and 406 IPC and under Section 4 of the Dowry Prohibition Act; (ii) petition under Section 125 CrPC before the Family Court, Dungarpur, Rajasthan, and (iii) petition under Sections 12 and 23 of the Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated that the respondent husband is already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by the petitioner wife and that it may not be difficult for the respondent husband to pursue the divorce petition in Dungarpur Court, Rajasthan. Considering the facts and circumstances of the case, we feel that the petition could be transferred to Dungarpur, Rajasthan.”
10. In the totality of circumstances, this Court is of opinion that the proceedings of the Guardians and Wards Petition ought to be moved from Aligarh to Etah.
11. In the result, the application for transfer succeeds and is allowed. Proceedings of Pure Misc. Case no.7 of 2019, Khaaluddin Khan vs. Gajala Parveen, under Sections 10, 12, 25 of the Guardians and Wards Act, 1890 stand withdrawn from the file of the Principal Judge, Family Court, Aligarh and made over to the Principal Judge, Family Court, Etah, who shall proceed to try and determine the said case either himself or assign it to an Additional Principal Judge, part of the Family Court at Etah. The Trial Judge shall endeavour to decide the case within six months next of the receipt of records and the parties appearing before him. There shall be no order as to costs.
12. Let this order be communicated to the Principal Judge, Family Court, Aligarh and the Principal Judge, Family Court, Etah by the Registrar (Compliance).
Order Date :- 24.9.2021 Anoop (J.J. Munir, J.) Note: Since my digital signature has expired and its renewal will take some time, the print out of the order has been taken and has been manually signed by us. This copy be uploaded with the stipulation as and when the digital signature is renewed or a fresh digital signature is obtained, the digital signature copy be uploaded after deleting the scanned copy.