RESERVED
Court No. - 1
Case :- TRANSFER APPLICATION (CIVIL) No. - 549 of 2019 Applicant :- Pooja Shukla Opposite Party :- Principal Judge Family Court Gautam Budh Nagar And Another Counsel for Applicant :- Rakesh Dubey Counsel for Opposite Party :- Mohammad Sadab Khan
Hon'ble J.J. Munir,J.
This is a transfer application under Section 24 C.P.C. made on behalf of Smt. Pooja Shukla, praying that proceedings of Matrimonial Petition No. 625 of 2019, Anshuman Dixit vs. Pooja Shukla, under Section 9 of the Hindu Marriage Act, 1955 be transferred from the Court of Principal Judge, Family Court, Gautam Budh Nagar to the Family Court at Kanpur Nagar.
2. Parties were married according to Hindu rites on 02.03.2019 at the Status Club Cantt., Kanpur Nagar. Shorn of unnecessary detail, it would suffice to notice for the purpose of the present transfer application that the applicant and respondent no. 2, Anshuman Dixit, her husband have turned an estranged couple. Whatever be the issues between them, litigation is rife between parties, all originating in matrimonial discord. An application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 being Complaint Case No. 613 of 2019 is pending before the Chief Metropolitan Magistrate, Kanpur Nagar. This application has been brought by the wife. Likewise, there is a complaint for offences punishable under Section 498-A etc. pending before the Chief Metropolitan Magistrate, Kanpur Nagar, also brought by the wife against the husband. The petition, that is sought to be transferred, is one under Section 9 of the Hindu Marriage Act and has been instituted before the Principal Judge, Family Court, Gautam Budh Nagar. This petition has been instituted by the husband.
3. Heard Mr. Rakesh Dubey, learned counsel for the applicant and Mr. Mohd Sadab Khan, learned counsel appearing for the respondent.
4. A counter affidavit dated 02.08.2021 has been put in on behalf of the husband. Learned counsel for the applicant has impressed upon the Court that two proceedings at the instance of the wife are pending at Kanpur Nagar, and it would, therefore, be convenient for both parties, if proceedings of this case are also transferred from Gautam Budh Nagar to Kanpur Nagar, where all the matters can be heard conveniently with the parties requesting the different Courts to consider accommodation and fix a single date in all causes. It is next urged that the settled proposition of law is that convenience of the wife must be looked into by the Court at the time of considering transfer of a case from one district to another. It is asserted that the applicant is a young woman, who is unable to defend herself by appearing on every date at Gautam Budh Nagar, where her husband and his family members are residing. It is said that they have treated her with cruelty during the period of time the parties were together and threatened to kill her. Her in-laws are influential and powerful persons and may put her in trouble, if she is forced to attend at Gautam Budh Nagar. It is also asserted in paragraph no. 17 of the affidavit that the distance between Kanpur Nagar and Gautam Budh Nagar is 428 kms. It is submitted that this puts the wife in a disadvantageous position, who is not in a position to defend herself properly before the Court at Gautam Budh Nagar.
5. Learned counsel appearing for the respondent, on the other hand, has pointed out to a feature in this case which is very unusual. He has drawn the attention of this Court to paragraph no. 3 of the counter affidavit, where it is asserted that the applicant is employed with Nagaro Software Private Limited in Gurgaon and does not stay far away from Gautam Budh Nagar. It is also asserted in paragraph no. 10 of the counter affidavit that the applicant is living and working in Gurgaon which shows that there is no risk to her life, if she attends at Gautam Budh Nagar. It is further submitted that the distance of Gurgaon is 40 kms from the Civil Court at Gautam Budh Nagar while Kanpur Nagar is 428 kms away from the residence of both parties. It is asserted in the counter affidavit that the grounds taken in support of the transfer application are based on wild allegations and there is no sense in transferring the case from Gautam Budh Nagar to Kanpur Nagar.
6. I have considered the rival submissions of parties.
7. The prayer for transfer in this case at the instance of the wife appears to be a classic illustration of the idiom: ‘carrying coals to Newcastle’. This is so because the parties are ad idem that both of them are located close to Gautam Budh Nagar - far closer than Kanpur Nagar. The husband is a resident of Gautam Budh Nagar, whereas the wife lives close by at Gurgaon, Haryana. It has not been disputed before me that the distance between Gurgaon and Civil Court, Gautam Budh Nagar is a mere 40 kms. If that distance is not precisely correct, this Court can and does take judicial notice of the fact that the distance between Gurgaon and Gautam Budh Nagar is negligible. At least there is no comparison between the distance that one has to travel to Kanpur Nagar either from Gautam Budh Nagar or Gurgaon, on one hand, and Gurgaon to Gautam Budh Nagar on the other.
8. Now, so far as the question of security is concerned, there is no doubt an allegation by the wife that she fears for her security at Gautam Budh Nagar, but that allegation is not based on a case about the slightest of an incident to give rise to an apprehension of that kind.
The allegations in paragraph no. 16 are based more on her sour experience during marriage than any specific threat held out or any incident that the wife might have faced in connection with defending the case at Gautam Budh Nagar. Still, if the wife thinks that she is unsafe because her husband and his family are domiciled at Gautam Budh Nagar, that fear of hers can be dealt with by a closer relocation of the case. There is absolutely no justification to send the proceedings all the way from Gautam Budh Nagar to Kanpur Nagar while both parties are residents of the NCR.
9. It is submitted by the learned counsel for the opposite party that it is the wife’s father, who stays at Kanpur Nagar and, therefore, she wants the case to be transferred there, where her father can take care of the case on her behalf. This Court cannot lose sight of the principle that the subject matter of the petition sought to be transferred is a cause between the husband and wife. There is little that the father can do about defending the matter on his daughter’s behalf. The Family Court would, from time to time, require the presence of the husband and wife while hearing the matter at different stages. Therefore, transferring the case all the way from Gautam Budh Nagar to Kanpur Nagar would not be in the interest of either party.
10. Bearing in mind the entirety of circumstances, this Court is of opinion that ends of justice would be met by directing transfer of case from the Principal Judge, Family Court, Gautam Budh Nagar to the Principal Judge, Family Court, Ghaziabad, which will almost be as close to the parties as Gautam Budh Nagar. At the same time, the apprehension that the wife has expressed about her security at Gautam Budh Nagar would also be sufficiently taken care of at Ghaziabad, where the husband or his family apparently do not reside.
11. In the circumstances, this transfer application is allowed in part and the proceedings of Matrimonial Petition No. 625 of 2019, Anshuman Dixit vs. Pooja Shukla, under Section 9 of Hindu Marriage Act are withdrawn from the Principal Judge, Family Court, Gautam Budh Nagar and transferred to the Principal Judge, Family Court, Ghaziabad, who shall proceed to hear and decide the said petition in accordance with law either himself/herself or assign it for trial and determination to an Additional Principal Judge, part of the Family Court at Ghaziabad. The Trial Judge shall make it convenient to ensure that the case is disposed of as far as possible within six months of the parties’ first appearing before the transferee court.
12. There shall be no order as to costs.
Jamshed Munir Order Date :- 23.09.2021 Brijesh Maurya Jahangir Digitally signed by Jahangir Jamshed Munir Date: 2021.09.24 18:06:03 +05'30'