Court No. - 1 Reserved
Case :- TRANSFER APPLICATION (CIVIL) No. - 352 of 2020 Applicant :- Smt. Priya Tiwari Opposite Party :- Himanshu Shukla Counsel for Applicant :- Prashant Kumar Singh,Santosh Kumar Nigam
Hon'ble J.J. Munir,J.
1. This transfer application, under Section 24 of the Code of Civil Procedure, has been made by the wife seeking transfer of Case no.2281 of 2019, Himanshu Shukla vs. Smt. Priya, under Section 13 of the Hindu Marriage Act, 1956 from the Principal Judge, Family Court, Kanpur Nagar to the Principal Judge, Family Court, Kannauj.
2. Heard Mr. Santosh Kumar Nigam, learned Counsel for the applicant and Mr. Balram Gupta, learned Counsel appearing on behalf of the opposite party.
3. The applicant and the opposite party were married according to Hindu rites on 14.04.2019. The parties have turned an estranged couple and traded wholesome allegations about dowry demand and cruelty. Of course, the husband-opposite party would rebut these allegations. It is not this Court’s province in the present transfer application to go into those allegations. In fact, there is no occasion for us to refer to all that the parties allege against each other in the various causes that they have brought arising from their matrimonial disharmony.
4. It is pointed out by the learned Counsel for the applicant that two cases, one under 125 Cr.P.C. and the other under Section 12 of the Domestic Violence Act, are pending before the Courts at Kannauj. The case whereof proceeding is sought to be transferred is a petition for divorce instituted at Kanpur Nagar by the husband. It is argued by the learned Counsel for the applicant that since the husband has, in any case, to come over to Kannauj and defend the two proceedings pending against him there at the instance of the applicant, it would be convenient to both parties if the present proceedings are also transferred to Kannauj, where parties may request the Court to fix a uniform date. It is also argued that the distance between Kannauj and Kanpur Nagar is 125 kilometers and the applicant, who is a woman with no source of livelihood, cannot afford the expenses involved in undertaking a journey, onward and return, to attend and defend proceedings at Kanpur Nagar. It is also emphasized that the opposite party resides at Mumbai, where he is posted in connection with his employment with the Canara Bank. Thus, so far as the opposite party is concerned, it would not make much difference whether the case is heard at Kanpur Nagar or at Kannauj; he has substantially to undertake the journey from Mumbai to central Uttar Pradesh, whether the case is venued at Kanpur Nagar or Kannauj.
5. The learned Counsel appearing for the opposite party, Mr. Balram Gupta has stiffly opposed the prayer for transfer. He submits that there is no good reason to transfer the case from Kanpur Nagar to Kannauj. He points out that Kanpur Nagar is centrally located and accessible by Air from Mumbai, whereas Kannauj lies far off from Kanpur Nagar. He urges that the opposite party is willing to pay for the wife’s travel expenses.
6. This Court has considered the submissions advanced and perused the record.
7. It is true that there are two cases already pending at Kannauj and the husband, in any case, has to come over and defend those cases at Kannauj. Once that position is not disputed, the balance of convenience for both parties would certainly lie in moving all cases to one venue, that is, Kannauj instead of two venues.
8. 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.”
9. The next submission is about convenience of the wife. Indeed, the distance between the two stations is 125 kilometers and the wife does not appear to have any means of livelihood. She would have little resource, physical or financial, to ensure a long distance travel on each date to attend at Kanpur Nagar. Her father is said to be an old man, who suffers from age related ailments. It is believable that it would be difficult for him to accompany the applicant on every date to Kanpur Nagar. It is asserted that the wife's father has a petrol pump and manages the Maruti Cars' Service Centre as well as some kind of a College. It is also said that the wife teaches in the College and earns by giving tuitions. These allegations do not have any evidence in support and there is nothing to indicate that the wife, in fact, has any independent source of income. It has not been denied that the husband is employed with the Canara Bank, where he is working as a Probationary Officer at Mumbai.
10. In the circumstances, it is, indeed, not much of issue, whether the husband attends proceedings at Kanpur Nagar or at Kannauj; in either case he has to travel from Mumbai to Uttar Pradesh. There are then some assertions by the opposite party about a threat to kill him, if he goes over to Kannauj, by the wife's relatives. There is, however, no evidence annexed about any complaint in the matter made by the husband to the Police or any Authority. The allegation, therefore, is ex facie without any substance.
11. This Court is, therefore, of opinion that proceedings ought to be transferred from Kanpur Nagar to Kannauj.
12. In the result, the application for transfer succeeds and is allowed. Proceedings of Case no.2281 of 2019, Himanshu Shukla vs. Smt. Priya, under Section 13 of the Hindu Marriage Act, 1956 are withdrawn from the Principal Judge, Family Court, Kanpur Nagar and made over to the Principal Judge, Family Court, Kannauj. The Principal Judge, Family Court, Kannauj 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 Kannauj. 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.
13. Let this order be communicated to the Principal Judge, Family Court, Kanpur Nagar and the Principal Judge, Family Court, Kannauj 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.