This is a transfer application under Section 24 of the Code of Civil Procedure by the wife seeking transfer of Divorce Case No. 405 of 2002 from the Fast Track Court No. 2 Ghaizabad to the Family Court at Lucknow.
The marriage between the petitioner Hema Rastogi and the respondent Vishal Rastogi was solemnised on 11.3.2001 at Luckow. A son Pranjal was born to them on 14.1.2002. They started living at Varanasi as the husband got a new job. Thus they left Modi Nagar in District Ghaziabad, their previous place of residence.
The husband while living in Varanasi on 23.3.2002 instituted the above divorce suit at Ghaziabad. The wife acquired knowledge of it on 23.10.2003.
The wife thereafter had put in appearance and applied under Section 24 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for maintenance of herself and her minor son claiming Rs. 15,000/- per month for herself and Rs. 25,000/- per month for her son along with legal expenses and towards travelling. The aforesaid application after remaining pending for about six years was decided on 4.10.2010 and the petitioner was allowed maintenance of Rs. 10,000/- per month both for herself and son and lump sum legal expenses of Rs. 10,000/- . Both the parties were not satisfied by the aforesaid order and therefore preferred separate revisions wherein vide order dated 20.10.2010 the amount of monthly maintenance was reduced to Rs. 7,500/- per month and the revisions were disposed of.
The wife filed a petition no. 17717 of 2011 under Article 227 of the Constitution of India challenging the reduction of the maintenance amount to Rs. 7,500/- per month and claiming still higher amount than Rs. 10,000/- per month awarded by the court of first instance. The above petition was dismissed on 28.3.2011. Thereafter, she preferred SLP No. 22841 of 2011 which was disposed of on 3.9.2013 approving the order of maintenance @ Rs. 7,500/- per month but not from the date of order rather from the date of application ie. 23.9.2004. The application for review of the above order filed by the wife was dismissed on 10.4.2014 by the Supreme Court.
In the meantime, the proceedings of the divorce suit continued and on 10.1.2012 issues were framed.
The husband filed petition no. 571 of 2014 under Article 227 of the Constitution of India for early and time bound disposal of the divorce suit. The said petition was disposed of on 18.2.2014 with the observation that the petitioner therein can impress upon the court concerned to get the suit decided expeditiously in accordance with the mandate of Section 21 -B (2) of the Act read with Rule 57 of the U.P. Family Courts (Court) Rules 2006.
It appears that now the suit is proceeding at a steady speed and since some orders have been passed which may not have suited the petitioner wife, she has considered it appropriate to seek transfer of the case from Ghaizabad to Lucknow.
The parties have exchanged the necessary pleadings and with their consent I have taken up the matter for final disposal.
I have heard Smt. Hema Rastogi in person who is accompanied and assisted by her brother and Sri Vijay Prakasah, learned counsel for the respondent husband.
The petitioner wife in short is seeking transfer of the proceedings for the reasons that none of the parties are presently residing at Ghaziabad. She is residing at Lucknow whereas respondent at Bhilai in Jharkhand where he is working as Assistant/associate Professor. Therefore, the transfer of the suit from Ghaziabad to Lucknow would not cause any harm to the respondent husband and would facilitate the petitioner in attending the proceedings. Secondly, she has no means to maintain herself and the maintenance of Rs. 7,500/- per month allowed to her and the son is not sufficient as his son is studying in class IX. Thirdly, she has not been granted any travelling allowance to travel from Lucknow to Ghaziabad. Lastly and more importantly she has no hope of getting justice from the present court at Ghaziabad for the reasons that in the recent past certain orders have been passed which had shaken her confidence and therefore it is necessary that the suit be transferred to Lucknow where she is presently living.
Sri Vijay Prakash, learned counsel for the respondent to counter the above arguments advanced by the petitioner wife has first of all taken a technical objection that the transfer application at Allahabad is not maintainable as the suit is sought to be transferred from Ghaziabad to Lucknow which is outside the jurisdiction of the Allahabad Court. His next submission is that the petitioner wife is making allegation against the court below and that her conduct had not been fair enough and as such she is not entitle for the relief of the transfer of the case. Lastly, he submitted that the petitioner wife had been participating in the divorce proceedings for the last 14 years since 2003 and therefore it is not fair on her part at this stage to seek transfer of the proceedings on the ground of either inconvenience or financial hardship etc. At the outset it is important to note that the proceedings for divorce have been initiated by the respondent husband. The petitioner wife accepts that it is not possible for her to live with him and that she is agreeable for divorce and to live separately provided adequate arrangement for her living and for the welfare of her son is made under the orders of the Court.
It is quite fair on her part to make the above submission agreeing for divorce but this is a matter which has to be considered and decided by the court dealing with the divorce proceedings and not by this Court in proceedings under Section 24 CPC unless the parties negotiate and settle the terms and conditions to which the petitioner wife had not agreed despite application by the respondent husband to refer the matter to mediation.
In these circumstances, the court has been left with no option but to decide the application under Section 24 CPC on merits.
Before dealing with the matter of transfer of the divorce case, it would be necessary to consider the submission of Sri Vijay Prakash that the transfer application is not maintainable before the Allahabad High Court.
In this regard his submission is that the transfer is being sought to a court in Lucknow which is sub-ordinate to the Lucknow Bench. Therefore, the application for transfer would lie before the Lucknow Bench of the Allahabad High Court.
Section 24 of the Code of Civil Procedure provides for the general power of transfer and withdrawal of the cases from one court to another. It lays down that the High Court or the district court may at any stage transfer any suit, appeal or other proceedings pending before any court sub-ordinate to it for trial or disposal to any court sub-ordinate to it and competent to try or dispose of the same.
In view of plain and simple language as used in Section 24 CPC the withdrawal and transfer of any suit, appeal or proceedings has to be from one court to another which are both sub-ordinate to the High Court.
There is no dispute to the fact and the legal position that the court of Ghaziabad where the suit is pending is sub-ordinate to the Allahabad High Court. The transfer is being sough to a competent court at Lucknow. The Civil Court/Family Court at Lucknow is also a court sub-ordinate to the Allahabad High Court. Therefore, there appears to be no hurdle in the transfer of the divorce suit from Ghaziabad to Lucknow by the Allahabad High Court.
Sri Vijay Prakash submits that Lucknow bench though part of Allahabad High Court has exclusive territorial jurisdiction in respect of matters of Lucknow areas.
Article 214 of the Constitution of India provides that every State shall have a High Court and as such Allahabad High Court is the High Court for the State of U.P., with its bench at Lucknow. The Lucknow Bench of the Allahabad High Court is part and parcel of the Allahabad High Court. It is not different and separate from it.
In Nasiruddin Vs. State Transport Appellate Tribunal A.I.R 1976 SC 331 apart from other things, it has been held as under:-
"The expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad."
In view of the above, the place of cause of action is crucial for determining the jurisdiction of Lucknow bench of the Allahaabad High Court.
It is only where the cause of action arises wholly within Oudh areas that the Lucknow bench will have execlusive territorial jurisdiction. The cause of action in the present case does not arise wholly in Oudh area. Therefore, Lucknow will not have exclusive jurisdiction.
Now where the cause of action in part arises in the specified Oudh area and part outside of it, the litigant may choose either the Lucknow bench or Allahabad. Thus, if the petitioner wife has chosen to file the transfer application at Allahabad, the respondent herein can not object to it.
The case which is sought to be transferred is pending in Ghaziabad which is outside the Oudh area and beyond the territorial jurisdiction of Lucknow. The cause of action for its transfer therefore arises at Ghaziabad and not at Lucknow to which place the transfer is being sought. The territorial jurisdiction of the place where the suit is pending alone is material for determining the jurisdiction and not the place where the transfer is being sought. Accordingly, Lucknow bench will not have jurisdiction to entertain the transfer application under Section 24 CPC and it would be well within the jurisdiction of the Allahabad High Court at Allahabad.
The learned Single Judge of this Court vide judgment and order dated 18.12.2015 passed in transfer application (Civil) No. 584 of 2015 relying upon Sub-section 3 of Section 23 of the Code of Civil Procedure has ruled that the application for transfer would lie before the High Court within whose local limits the suit is brought is situate. In other words, the place of institution of the suit would govern the place where the transfer application would line.
In the present case, the suit was instituted and is pending in Ghaziabad within the territorial jurisdiction of the High Court at Allahabad outside that of the jurisdiction of the Lucknow Bench. Therefore, the transfer application has rightly been filed at Allahabad.
In view of the above, the technical objection to the jurisdiction of this Court and the maintainability of the transfer application before this Court is over-ruled and rejected.
It is settled that traditionally the courts have always leaned in favour of wife in transferring the matrimonial disputes to a court of competent jurisdiction at the choice of the wife but the trend had changed recently and it has been observed that convenience of wife should not be made the cause of sufferance to the husband. It is an acknowledged fact that most of the requests made by the wife for transfer of matrimonial disputes have traditionally been accepted with sympathy and the transfer of case, filed by husband, to their place of residence has become an order of the day as the courts have become too liberal in exceeding to their requests but the husband also have a right and they should not be made to suffer always. There is lot of inconvenience to the husbands also in going out for attending the proceedings as they may be in service and may not be allowed frequent and necessary leave for attending the proceedings.
Thus, the balance needs to be maintained with a clear pro women tilt vis-a-vis the rights of the husbands and the difficulties that may be suffered by them.
In the instant case the facts reveal that the petitioner wife had been participating and contesting the divorce proceedings at Ghaizabad since 2003. She had not faced any inconvenience or difficulty of any kind in the past in attending the proceedings. Therefore, any financial hardship or inconvenience in travelling from Lucknow to Ghaziabad to participate in the proceedings and that too when the matter is at the fag end of decision is beyond comprehension and can not be a ground for transfer of the case.
This leaves the Court with the argument that the petitioner wife has no hope of justice from the court concerned. It also does not find favour with the court as the past orders speak a lot about the conduct of the petitioner wife in adopting dilatory tactics. Now merely for the reason that the court has adopted a harsh and stiff attitude and had insisted for day-to-day hearing it does not mean that the court is biased or prejudiced against the petitioner wife.
In view of the over all facts and circumstances of the case balancing the convenience and inconvenience of the parties and keeping in mind that the suit is in the final stages of decision coupled with the fact that the petitioner had been participating in the proceedings at Ghaziabad for the last 14 years, the court is unable to accept the request for transfer of the suit on any ground at this stage.
Accordingly, the transfer petition is dismissed with liberty to the petitioner wife to move to the District Judge if necessary for allotting the case to the Principal Judge, Family Court after withdrawing it from the Fast Track court but with the condition that since it is a matter of 2002, it shall not be adjourned until and unless inevitable that too with special cost of not less than Rs. 1,000/- per adjournment so that it may be concluded expeditiously preferably within the next six months and that before the suit is concluded, the court seized of the matter would ensure that the entire arrears of maintenance as awarded under Section 24 of the Act @ Rs. 7,500/- per month and due are paid by the respondent husband to the petitioner wife. It will be open for the parties and the court below to refer the matter to mediation for settlement of terms and conditions for divorce between the two.
The transfer application is dismissed with the above observation and directions.
Order Date :- 24.10.2016 SKS