Court No. - 1
Case :- TRANSFER APPLICATION (CIVIL) No. - 19 of 2021 Applicant :- Smt. Shikha Jaiswal Opposite Party :- Atual Kumar Jaiswal Counsel for Applicant :- Anil Kumar,Ashish Kumar Counsel for Opposite Party :- Anjali Singh
Hon'ble J.J. Munir,J.
This is a transfer application preferred by the applicant-wife, under Section 24 of the Code of Civil Procedure, 1908. The applicant seeks transfer of pending Petition No. 160 of 2020, Atual Kumar Jaiswal v. Smt. Shikha Jaiswal, under Section 13(1)(1A) of The Hindu Marriage Act, 1955 from the Court of the Additional Principal Judge, Family Court No. 3, Jaunpur to the Principal Judge, Family Court, Mau.
2. Heard Mr. Anil Kumar, learned Counsel for the applicant and Ms. Anjali Singh, learned Counsel appearing for the opposite party.
3. The ground of transfer that is urged is largely founded on the assertions made in Paragraph Nos. 11 and 12 of the affidavit filed in support of the transfer application. It is said there that the applicant's father has passed away and she stays with her mother, who suffers from neurological problems and undergoing treatment. It is also said that the applicant has a brother named Harshit Shyam Jaiswal, who is pursuing his Ph.D. Programme at the Banaras Hindu University, Varanasi. He is not available to assist the applicant with defense of the case filed by her husband at Jaunpur. The applicant also has a sister named Shruti Jaiswal, who is working in Conduant Company based in Bengaluru and is posted as a Senior Associate at NOIDA. The applicant has, therefore, urged that effectively, she is left with her ailing mother alone at Mau. It is submitted by the learned Counsel for the applicant that on this score, it is not only inconvenient, but also impossible for the applicant to effectively defend proceedings at Jaunpur, that is located at a distance of about 100 kms. from Mau. It is also urged that the applicant has no source of livelihood, and her mother is not able to earn anything on account of her age and the neurological problems that she suffers from. It is also asserted in Paragraph No. 12 that the applicant fears for her life at the hands of the opposite party and his family, in the event she is forced to attend proceedings at Jaunpur. It is also said that the applicant has no escort to accompany her to Jaunpur and attend proceedings there before the Family Court on every date. By contrast, the husband is an able-bodied man who can conveniently attend at Mau, in case the proceedings are transferred to that station.
4. Ms. Anjali Singh, learned Counsel appearing for the opposite party- husband, on the other hand, has contended that it is incorrect to say that the wife has no one at home to accompany her to Jaunpur, which is not located far away from her hometown, Mau, where she stays with her mother. She has emphatically stated that the applicant has a brother and a sister, where either of them are quite capable of accompanying her to Jaunpur, and effectively defend proceedings there. She has also pointed out that the applicant-wife has not appeared at Jaunpur even once. Instead, she has moved this transfer application and has been granted a stay of proceedings before the Court at Jaunpur. Ms. Anjali Singh has placed reliance on a decision of the Supreme Court in Kanagalakshmi v. A. Venkatesan 1 to submit that in a case where the husband is prepared to bear the wife's travel expenses, transfer ought not to be ordered to suit the wife's convenience. She has further placed reliance on a decision of the Supreme Court in Usha George v. Koshy George 2 to the same end. Again, reliance has been placed on a decision of the Supreme Court in M. Sivagami v. R. Raja 3. On the other hand, learned Counsel for the appellant has placed reliance on a decision of this Court in Smt. Nisha v. Dharmendra Pratap Singh Rathore 4.
5. This Court has keenly considered the submissions advanced on both 1 (2004) 13 SCC 405 2 (2000) 10 SCC 95 3 (2005) 12 SCC 301 4 2015 ( 1) ADJ 285 sides and perused the record. This Court must remark at once that there are broad principles governing transfer of cases from one station to another, particularly in matrimonial disputes, but there is no straight jacket formula that can be adopted as one of universal application. It is true that there is no blanket principle that proceedings are always to be transferred for the asking of the wife, but at the same time, the wife, in situations where she is disadvantaged on recognized parameters, her interests are to be safeguarded. One of the principles considered relevant in accepting a wife's plea for transfer is a case where there is no one available in her family to escort her to a different station, where proceedings have been instituted by the husband. Also, there is a line of authority, where, in matrimonial cases, the convenience of the wife has been considered as a preponderant factor while deciding plea for transfer. In this connection, reference may be made to the decision of this Court in Smt. Nisha (supra) where it has been held in Paragraph Nos. 13, 20 and 23 of the report :
13. In the matrimonial matters the convenience of wife and in particular that she has no one in her family to escort her to undertake a long journey has been held to be good ground for transfer of case as is also evident from Apex Court's decision in Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374 and Fatema v. Jafri Syed Husain @ Syed Parvez Jafferi, AIR 2009 SC 1773.
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20. Sometimes transfer of suit has also been justified on the ground of convenience to the parties or witnesses etc. but in such cases the paramount factor which should be considered is the convenience of both parties. An exception, however, to some extent, has been made in matrimonial cases where convenience of wife has been given a dominating factor than husband, particularly when she has none to escort her or of quite young age or where she has financial constrained etc.
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23. Convenience of wife to pursue the proceedings is relevant factor, if pleaded bona fide for justifying transfer of a matter to the place where it is convenient to the wife. In the present case it is not in dispute that applicant is residing at Etah having no source of income, having two years daughter and there is no one in her family to escort her to Bareilly. In the facts and circumstances of the case, in my view, in the interest of justice, the transfer application ought to have been allowed.
6. The decision of their Lordships of the Supreme Court in Kanagalakshmi (supra) arose out of plea of transfer from one State to another, on the ground of wife's inconvenience. In that case, their Lordships of the Supreme Court, without laying down much principle, refused transfer, subject to the husband paying the wife's travel expenses from Tirunelveli, Tamil Nadu to Mumbai. The relevant part of the decision in Kanagalakshmi is extracted :
1. This is a petition filed by the wife seeking transfer of pending matrimonial dispute before the Family Court at Bandra, Mumbai to the Subordinate Judge, Tirunelveli, Tamil Nadu on the ground that it is difficult for her to travel from Tirunelveli to Mumbai to pursue her case. Learned counsel appearing for the respondent husband has filed his counter stating therein that he is prepared to bear the expenses not only of the petitioner but also of her accompanying person both for travel and stay at Mumbai. Recording the said statement, we think it is not necessary to transfer the pending case at the Family Court, Bandra, Mumbai. However, we direct the respondent to pay to the petitioner the travel expenses as well as for their stay during the dates of hearing in Mumbai. We direct the Family Court to dispose of the petition and applications for interim maintenance if any within six months from the receipt of this order and direct the Family Court, if possible, to cross-examine both the parties in regard to their affidavit on the same day.
7. The decision in Usha George (supra) declining wife's plea for transfer primarily proceeded on the principle that proceedings before the Family Court at Sikandarabad had gone ahead and the case had reached a fairly matured stage. Some eleven dates had been fixed. It was in view of the advanced stage of proceedings before the Court at Sikandarabad that transfer on the wife's plea was declined.
8. Again, the decision in M. Sivagami (supra) relied upon by learned Counsel appearing for the opposite party is a case where proceedings before the Family Court at Coimbatore had substantially progressed and witnesses had been cross-examined. The wife had moved an application for maintenance within the jurisdiction where she resided and then applied for a transfer of the divorce proceedings from Coimbatore to Namakkal. The wife principally urged the heavy expenditure involved in travelling from Namakkal to Coimbatore as the ground for transfer, which the High Court had declined. It was in those circumstances that their Lordships of the Supreme Court modified the order of the High Court and while maintaining refusal of the wife's transfer plea, saddled the husband with the initial litigation cost of Rs. 5,000/- and some other costs too.
9. In the opinion of this Court, none of the decisions relied upon by the learned Counsel for opposite party come much to the opposite party's aid. It has not been disputed here for a fact that the wife does not have any other family member, besides her mother, available at hand to be her escort on the various cases that are fixed at Jaunpur. There are detailed assertions about the brother's preoccupation at Varanasi and the sister's employment at NOIDA, both of which would effectively keep back the two from being the applicant's escort on the various dates that are fixed at Jaunpur. This Court must remark that the mother does not appear to be very old or very sick, but nevertheless, she would not be in a position to be the applicant's escort on every date to attend at Jaunpur. The expenditure involved in travelling to Jaunpur from Mau is not very relevant, as that can always be compensated by directing the husband to pay for the wife's travel; but, that would not be decisive about the wife's plea seeking transfer of the case. What is decisive is her disability arising from the absence of a suitable escort to be with her on every date at Jaunpur. There appears to be some apprehension harboured by the wife about her security, regarding which this Court need not say much. The fact remains that this appears to be a case where the wife is placed in rather troublesome circumstances, if not outrightly a situation of helplessness, where asking her to travel to Jaunpur on every date may lead her defense to be compromised. The fact that in this case, the proceedings so far have gone ex-parte is a dependable index of the fact that the wife is not in a position to travel to Jaunpur and defend. There is no reason why the wife would not be willing to defend. The proceedings so far at Jaunpur, therefore, in the opinion of the Court, show that the wife cannot effectively defend at Jaunpur. On the other hand, the husband is an able- bodied person and possessed of means to fund his travel to Mau, which is not very far away from Jaunpur. That apart, these proceedings for divorce have been initiated by him and he has to bear the expenses involved.
10. In the circumstances, this transfer application succeeds and is allowed . The proceedings of Petition No. 160 of 2020, Atul Kumar Jaiswal v. Smt. Shikha Jaiswal, under Section 13(1)(1A) of the Hindu Marriage Act, 1955 pending in the court of the Additional Principal Judge, Family Court No. 3, Jaunpur stand transferred to the Principal Judge, Family Court, Mau, who may proceed to try the petition himself or assign it to any Additional Judge available there.
11. There shall, however, be no order as to costs.
Order Date :- 27.7.2021 Jamshed Munir I. Batabyal Jahangir Digitally signed by Jahangir Jamshed Munir Date: 2021.07.29 18:11:57 +05'30'