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Madhya Pradesh High Court · body

2010 DIGILAW 506 (MP)

Saroj Devi Kushwaha v. Satendra Singh Kushwaha

2010-04-30

PIYUSH MATHUR

body2010
Judgment ( 1. ) This is an application preferred by the wife under section 24 of the Civil Procedure Civil, seeking transfer of the proceedings instituted on behalf of the respondent/Husband, before the Family Court on the ground that the husband has desereted the wife and she is not in a position to attend the proceedings at Gwalior as she is residing at Village Hingona, District Morena, which is situated at a distance of about 50 Kilometers from Gwalior. ( 2. ) The facts of the case reveal that the petitioner and respondent were married at Morena but due to alleged cruel behaviour of the Husband, the wife was compelled to leave the Matrimonial home since then she is residing at her parents house. The applicant has further demonstrated that the cruel behaviour of the respondent as also his family members, it directed towards their ill-gotten demand of dowry. It is also submitted that the Husband has beaten her when she was coming out of the Family Court on date 8.4.2009 about which a prompt FIR was lodged on the same day at Gwalior and the Husband has threatened the wife for facing dire consequences, therefore she has expressed her unwillingness and fear of going to Gwalior, by projecting the apprehension of danger of her life, while seeking transfer of the petition preferred by her husband under section 13 of Hindu Marriage Act. ( 3. ) Shri R.S. Kushwaha, learned counsel for the applicant placed reliance on the judgment of this Court reported as 2004 (4) MPHT 42 Mamta v/s Brijesh to demonstrate that the difficulties of the wife in a matrimonial dispute deserves to be considered. He also placed reliance on another judgment of this Court reported as 2004 (4) MPHT 187 Smt. Kirti Chouksey v. Rajiv Chouksey to substantiate the same submission. He also relied upon another judgment of this Court reported as 2006 (1) MPLJ 463 Vandana v/s Angad Singh Jadav to demonstrate that difficulty to attend the hearing may be seen as a practical difficulty for the wife to attend the hearing at Gwalior. ( 4. ) Shri H.K. Shukla, learned counsel for the non-applicant/husband has objected to the transfer of the proceeding by denying each and every averment of the applicant/wife. Shri Shukla submits that no cruelty was played upon the wife, and no demand of dowry was made. ( 4. ) Shri H.K. Shukla, learned counsel for the non-applicant/husband has objected to the transfer of the proceeding by denying each and every averment of the applicant/wife. Shri Shukla submits that no cruelty was played upon the wife, and no demand of dowry was made. He submits that entire amount of maintenance has been deposited by the husband and on none of the grounds the matter deserves to be transferred, as Morena is sitauted at a distance of 45-50 Kilometers from Gwalior. Shri Shukla relied upon a judgment of this Court reported as 2007 (2) MPLJ 269 Rakhi Mishra v. Sanjay Mishra to demonstrate that in the event of furnishing of an undertaking by the husband, this Court has not entertained the prayer for transfer of the proceedings. Shri Shukla submits that the Non-Applicant/Husband is willing to file an undertaking that he would not harass the wife, in case the proceeding of Divorce continues at Gwalior. ( 5. ) I have heard Shri R. S. Kushwaha learned counsel for the applicant and Shri H.K. Shukla learned counsel for the respondent and perused the available documents filed by the litigating parties. ( 6. ) The Supreme Court has laid down in a judgment reported as 2001 (10) SCC 41 Sumita Singh v. Kumar Sanjay and another that the convenience of wife must be looked at by the Court while exercising power to transfer the case under section 24 of the Code. This Court also find that the convenience of the wife would be a paramount consideration, in a situation where wife is living separately from her husband and there exist no difficulty for the husband to attend the hearing of the case, at a place which is situated within 50 Kilometers from Gwalior, (as per the showing of the Husband himself) whereas the applicant/wife would be required to travel from her village Hingona to nearby district Court Morena. ( 7. ) A perusal of section 24 of the Code of Civil Procedure demonstrate that it empowers the High Court to transfer any suit, appeal or other proceedings to any other Court (which is subordinate to it) and competent to try and dispose of the same. ( 7. ) A perusal of section 24 of the Code of Civil Procedure demonstrate that it empowers the High Court to transfer any suit, appeal or other proceedings to any other Court (which is subordinate to it) and competent to try and dispose of the same. In the present case the Applicant/Wife has invoked section 24 of CPC on the ground that she reside in an interior village of Morena District and it would be difficult for her to attend the hearing before the District Court situated at Gwalior, due to aforesaid reasons. ( 8. ) While analyzing the scope of section 24 CPC and power of a Court to transfer a case, the Supreme Court has observed in a case, reported as 2008 (3) SCC 659 Kulwinder Kaur v. Kandi Friends Education Trust, that convenience of the litigating parties at a particular place of trial, having regard to the nature of the evidence and issues raised by the parties must be considered and only thereafter, the power of transfer of a suit or appeal should be exercised by the Court, in the interest of justice. For ready reference relevant observation of the Supreme Court made in the case of Kulwinder Kaur v/s Kandi Friends Education Trust, 2008 (3) SCC 659 are quoted herein below: 22. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. 23. Reading sections 24 and 25 of the Code together and keeping in view various judicial pronouncements certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice" demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a "fair trial" in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order. ( 9. ) Therefore looking to the alleged apprehension and the alleged cruel behaviour of the husband and further in view of the locational advantage of the applicant wife, it would be in the interest of justice to transfer the proceedings from Gwalior to Moreana. Consequently (old Suit No. 139-A/2008) New suit No. 58-A/2009 pending before the family Court Gwalior is transferred to District Court, Morena for its disposal on merits. ( 10. ) The record shows that the non-applicant/husband had approached this Court in W.R No. 1776/2010 by complaining that inspite of filing of Affidavits as Examination-in-Chief, the process of cross-examination is not permitted to be completed on account of absence of the applicant/wife, therefore, this Court while disposing of the Writ petition on date 19/4/2010, has directed the Family Court to decide the case within a period of 4 months from the date of receipt of Certified Copy of that Order. This Court reiterates that the Order passed in W.P.No. 1777/2010 on date 19.4.2010 must be complied with by the District Judge, Morena (and any other judge to whom the case is made over for disposal by the District Judge) and the suit No. 5 8-A/2009 H.M. A. be disposed of within the aforesaid time frame of 4 months. With this direction this MCC is finally disposed of.