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2014 DIGILAW 417 (CHH)

Ranu Mishra v. Abhishek Mshra

2014-11-24

CHANDRA BHUSHAN BAJPAI

body2014
ORDER Chandra Bhushan Bajpai, J. 1. By this order Transfer Petition (Civil) filed by the petitioner seeking transfer of Civil Suit No. 433-A/14 (new No. 204-A/14) (Abhishek Mishra Vs. Smt. Ranu Mishra) pending in the Court of First Additional Principal Judge, Family Court, Durg, C.G. to the Court of Principal Judge, Family Court Bilaspur, C.G. is being disposed of. As per facts of the transfer petition, the petitioner and respondents married on 11-12-2008. Out of this wedlock, a female child born on 31-01-2012. The respondent filed the instant suit under Section 13 of the Hindu Marriage Act for seeking divorce on 28-7-2014 which is presently pending in the Court of First Additional Principal Judge, Family Court, Durg in which on 04-9-2014 as the petitioner was unable to attend the proceeding before the Court below, the Court below proceeded to order ex-parte against the petitioner and the case was fixed for ex-parte evidence of respondent. Meanwhile, the petitioner filed an application under order 9 Rule 7 of the CPC which is presently pending in the said suit for its reply. The petitioner had taken the ground for the transfer of above mentioned Civil Suit on the ground that she is a Shiksha Karmi, a Govt. servant posted about 400 kms. away from Durg; to appear in the Court costs a lot of time, money and physical harassment; she has to take leave for the period; she is also having one minor child; there is no place at Durg to reside temporarily. The petitioner further prayed that the case be transferred to the Court of Principal Judge, Family Court, Bilaspur, C.G.; there is ample conveyance between Durg to Bilaspur and the distance is within 200 kms., hence, she prayed that the present case (Abhishek Mishra v. Smt. Ranu Mishra) be transferred from the court abovementioned to the Family Court, Bilaspur. 2. Learned counsel for the respondent filed his power and submitted that he is ready to argue the case finally. 3. With due consent of both the parties, the case is heard finally. 4. Learned counsel for the petitioner supported his petition and argued that from the work place of the petitioner, Durg is about 400 kms. 2. Learned counsel for the respondent filed his power and submitted that he is ready to argue the case finally. 3. With due consent of both the parties, the case is heard finally. 4. Learned counsel for the petitioner supported his petition and argued that from the work place of the petitioner, Durg is about 400 kms. away; she is having an infant child aged about 2 years and 10 months; she has to take leave for 2 days as the distance is more; there is no direct conveyance and no means to stay at Durg; Bilaspur is situated almost in the center for which the petitioner has to travel about 200 kms. and the respondent has to travel 150 kms. to 200 kms. The respondent is working as Medical Representative, he will not suffer any loss. So, the case be transferred from the First Additional Principal Judge, Family Court, Durg to the Principal Judge, Family Court, Bilaspur. 5. In reply, learned counsel for the respondent submitted that the petitioner not levelled any allegation for the presiding Judge, she is well educated earning handsome salary. Under Section 13 of the Hindu Marriage Act, a plaint is presented against her before the Family Court, yet she had not filed any application under Section 24 of the Hindu Marriage Act or any application for the cost or anything lis pendens; she had not appeared before the Court below on 04-9-2014, thereafter, she filed an application under Section 9 Rule 7 for dismissal of the ex-parte proceeding against her. Today, the case is fixed for reply of the respondent against that petition and on behalf of the respondent reply is being filed by today itself in the Court below. He further submitted that as per provisions of Section 13 of the Family Courts Act, the petitioner may appoint some Lawyer as amicus curiae and the Court, if found necessary, may allow her petition, in that case, she is not required to attend each and every date as almost in all the cases courts allow the petition for assistance of the legal expert, so the appearance of the petitioner is not necessary in all the date to be fixed; the petitioner is not a illiterate lady, she can demand for T.A.-D.A. for which the respondent is ready to pay and the respondent is presently working at Rajnandgaon as Medical Representative. Therefore, looking to the above facts, the petition filed by the petitioner may be dismissed. 6. I have perused the documents filed along with the petition in support of the petition. 7. In support of his argument, the learned counsel for the petitioner placed reliance on the matter of Sumita Singh Vs. Kumar Sanjay and another AIR 2002 SC 396 , wherein Hon'ble the Supreme Court held that:-- "3. It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute. 4. Accordingly, Matrimonial Case No. 30 of 2000 pending before the VIth Additional District and Sessions Judge, Ara, Bhojpur, Bihar shall stand transferred to the District Judge, Delhi, who shall hear it himself or assign it for hearing to an appropriate forum." Hon'ble the Supreme Court on the basis of wife working at Delhi, suit filed by the husband at place far off from Delhi, allowed the petition and transferred the suit for trial to Delhi. 8. The petition filed on behalf of the respondent under relevant provision of Section 13 of the Hindu Marriage Act seeking divorce is pending as aforementioned. Though there is no allegation on the presiding Judge, other consideration are relevant regarding the petition for transfer. As submitted though the petitioner is working as Shiksha Karmi, but she is a lady, she is having one female child of the age of 2 years and 10 months. As prayed, the distance is about 400 kms. It appears that there is no appropriate conveyance from Marwahi to Durg straight. On the other hand, the respondent is Medical Representative working at Rajnandgaon and residing at Durg. From Durg to Bilaspur, there are many conveyance including many direct trains and facility for the commercial transportation by road. Presently, the petitioner was absent from first day of hearing for a reason goes to show that for filing application under Section 24 of the Hindu Marriage Act or other proceeding for expenses to be incurred for her appearance or other part is yet to be followed after the order of set aside of ex-parte proceeding, if found acceptable, in due course of law. The prayer to transfer this petition to Bilaspur seems to be less convenient to both the parties as Bilaspur is about in the middle from the residence of the petitioner and the residence of the respondent. 9. On due consideration, I am of the view that the petition is based on such facts which are proper and acceptable thereby the petitioner succeeds to prove the prayer made by her in the instant transfer petition. 10. Consequently, the transfer petition (civil) filed on behalf of the petitioner is hereby allowed and it is ordered that Civil Suit No. 204-A/14 (old number 433-A/14 (Abhishek Mishra vs. Smt. Rami Mishra) presently pending in the Court of First Additional Principal Judge, Family Court, Durg for 24-11-2014 be withdrawn and transferred to the Principal Judge, Family Court, Bilaspur for its trial/disposal in accordance with law. The First Additional Principal Judge, Family Court, Durg is hereby directed to transmit immediately the concerned record towards Principal Judge, Family Court, Bilaspur for further proceedings. Certified copy today. Petition allowed