Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 840 (JHR)

Neelu Jain v. Praveen Chandra

2003-07-17

GURUSHARAN SHARMA

body2003
ORDER Gurusharan Sharma, J. 1. Heard the parties. Petitioner No. 1 was married with the opposite party on 25.11.1993 at Madhupur within Deoghajr District in the State of Bihar (now newly created State of Jharkhand) and a child-petitioner No. 2 was born out of their wed lock on 1.9.1994. Admittedly maternal house of petitioner No. 1, where her parents are residing, is at Arrah in the State of Bihar. It is said that on 12.2.1997 she left her matrimonial house at Madhupur for her maternal house at Arrah along with her mother and the infant daughter petitioner No. 2 and never returned. 2. On 3.8.2001 opposite party filed Matrimonial Case No. 67 of 2001 in the Court of District Judge Deoghr for divorce by dissolution of marriage under the provisions of the Hindu Marriage Act, 1955(hereinafter referred to as the Act). Petitioners appeared in the said case. 3. The present application has been filed by the petitioners under Section 23(3) of the Code of Civil Procedure for transfer of the aforesaid matrimonial case from the Court of District Judge, Deoghar in the State of Jharkhand to the Court of District Judge. Arrah within the State of Bihar on the ground that they were not in a position to contest the said case at Deoghar, which is around 300 kilometers away from Arrah, where they were residing. There was also threat to petitioner No. 1 by the opposite party at Deoghar. Father of petitioner No. 1 was an ailing person and his brother was not in a position to take them to Deoghar on each and every date fixed in the case. 4. As per provisions of Section 19 of the Act the opposite party could have filed the present case either at Deoghar, where the marriage was solemnized or at Arrah, where the petitioners at the time of filing of the case were residing. 5. Sections 22 and 23 of the Code apply only in cases where the plaintiff has the option to sue in more than one Court. Section 22 is applicable only if the suit in its entirety is cognizable by either of the Courts in which the suit is filed or by the Court from which the suit is sought to be transferred. 6. Section 22 is applicable only if the suit in its entirety is cognizable by either of the Courts in which the suit is filed or by the Court from which the suit is sought to be transferred. 6. Section 23 is not an independent section, rather it is supplemental to Sections 22 and 23 merely lays down the forum in which application under Section 22 is to be made. The High Court within whose jurisdiction the suit is pending in a subordinate Court can transfer the same to a similar Court subordinate to another High Court. 7. For the purpose of such transfer it is well settled that balance of convenience of the parties should be considered. The Court is required to find out whether a particular party has chosen a forum in utter disregard to the convenience of the parties for some ulterior object and in abuse of his position as an arbiter litus. I find that the petitioners, have no one, with whom they can stay at Deoghar, because parents of petitioner No. 1 are resident of Arrah. It is the husbands suit against the wife and as such the wifes convenience must be looked at. 8. In my opinion, the circumstances indicated above are sufficient to make the transfer petition absolute. Looking to the convenience of the wife, who is haying a minor child about 6-7 years old, husbands case for divorce deserves to be transferred to the place of resident of the wife. In this regard reference may be made to a recent decision of Apex Court in Sumitra Singh v. Kuznar Sanjay and Anr., AIR 2002 SC 396 . Accordingly, Matrimonial Case No. 67 of 2001, pending in the Court of District Judge, Deoghar (Jharkhand) shall stand transferred to the District Judge, Arrah (Bihar), who will hear it himself or assign it for hearing to an appropriate forum. This transfer petition is disposed of according.