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Madhya Pradesh High Court · body

1996 DIGILAW 141 (MP)

Usha Bai Jain v. Santosh Kumar Jain

1996-02-01

C.K.PRASAD

body1996
ORDER 1. The petitioner had prayed for transfer of case 10-A/94 from the Court of District Judge, Dhar to any other Court of competent jurisdiction at Mhow Tahsil in the District of Indore. The ground for transfer is that Dhar is at a distance of about 80 kms. from Mhow and the petitioner, being a deserted woman, is not in a position to go to Dhar to attend the Court. It is submitted that she is sick. On the aforesaid ground the petitioner, the wife seeks transfer of the case. It is further stated that an application for grant of maintenance at Mhow Court u/s. 125 of the Code of Criminal Procedure is also pending. 2. On the basis of aforesaid averments, prayer has been made for the transfer of the case. It is relevant here to state that the case filed by the husband/non-applicant, for dissolution of the marriage was filed in the Court of District Judge, in June, 1994. Thereafter she filed an application for grant of ad-interim alimony as also the cost of litigation and the same was allowed and the alimony as directed was deposited on 30.8.95. 3. Counsel for the petitioner in support of his submission for transfer of the case, placed reliance on the judgment of the learned Single Judge of this Court in the case of Munnibai v. Lokprasad Tiwari [1989 (I) MPWN 68]. While directing for the transfer of the case, this Court held as follows: "After hearing the counsel, I am satisfied that it is a case, where an order of transfer is needed for a proper and fair trial and looking to the convenience of the parties, particularly, the petitioner is a lady residing at Indore, cannot attend each date of hearing at Mandleshwar, which is quite far from Indore. To save time and expenses also, it would be convenient to pass an order of transfer." While directing for the transfer, this Court took into consideration that the marriage was solmnised at Mhow and the husband who filed the application resides at Indore. It was further taken into consideration the fact that the husband in the said case has ancestral property at Indore and to harass the wife, the suit was filed at Mandleshwar. Convenience of the parties not the wife only, was taken into consideration. Thus, the case cited by the counsel is clearly distinguishable on facts. 4. It was further taken into consideration the fact that the husband in the said case has ancestral property at Indore and to harass the wife, the suit was filed at Mandleshwar. Convenience of the parties not the wife only, was taken into consideration. Thus, the case cited by the counsel is clearly distinguishable on facts. 4. Other decision on which the learned counsel has placed reliance, is the decision of Single Judge of this Court in the case of Rajni Sharma v. Nathoo Ram Sharma [ 1995 (I) MPWN 190 ]. Learned single Judge of this Court after considering the decision of this Court in the earlier cases directed for transfer of the case and while doing so took into consideration the fact that the amount of maintenance was deposited on the date when the application was taken up for consideration. The aforesaid judgment also referred to the judgment of this Court in the case of Meerabai Pasi v. Shivshankar Pasi ( 1985 MPWN 388 ) in which this Court observed that "Mere apprehension not having total expenses and bodily harm was not a ground to transfer a case from one place to another." 5. In case the submission of learned counsel is accepted that the petitioner being a lady, her case should be transferred to be place where she is residing then every matrimonial case has to be transferred to the door steps of the wife. This, in my opinion, cannot be accepted as proposition of law. It depends upon the facts and circumstances of each case. Here the ground urged by the petitioner is that she being a lady, the case be transferred to Mhow. She has got the ad-interim alimony as also expenses of litigation by order of the Court. The case was filed in the year 1994 whereas the application for transfer is filed on 29.1.96. No ground subsequent to the filing of the maintenance case has been urged for transfer of the case. 6. As regards pendency of the application u/s. 125 of the Code of Criminal Procedure, it is worthwhile here to mention that the present matrimonial case was filed, on 7.6.94 whereas according to the petitioner's own showing, the application for grant of maintenance was filed thereafter. Therefore, this ground cannot be urged for transfer of the case from Dhar to Mhow. As regards pendency of the application u/s. 125 of the Code of Criminal Procedure, it is worthwhile here to mention that the present matrimonial case was filed, on 7.6.94 whereas according to the petitioner's own showing, the application for grant of maintenance was filed thereafter. Therefore, this ground cannot be urged for transfer of the case from Dhar to Mhow. If that be so in every case, application for maintenance shall be filed after the institution of matrimonial case and the later shall be transferred on that ground. This, in my opinion, is not permissible. 7. As a result, I do not find any merit in the application. It is dismissed in limine accordingly.