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2015 DIGILAW 1746 (RAJ)

Smt. Uma w/o Shri Nilaksh Dwivedi v. Nilaksh Dwivedi s/o Late Shri Mahesh Dave

2015-10-06

VINEET KOTHARI

body2015
JUDGMENT 1. - The present transfer petition has been filed by the petitioner-wife-Uma, a practicing Advocate at Bharatpur against the respondent-husband-Nilaksh Dwivedi, who is also a practicing Advocate at Udaipur, and has filed a divorce petition at Udaipur under Section 13 of the Hindu Marriage Act, namely, Misc. Case No.517/2012 - Nilaksh Dwivedi v. Smt. Uma , which is pending in the Family Court, Udaipur. 2. The petitioner-wife has sought transfer of the said proceedings from Udaipur to Bharatpur inter alia on the ground that out of the said wedlock, after their marriage on 09.12.2009, a girl child, Nyasha was born on 12.10.2010, who is living with her at Bharatpur. Her father is old aged and brother is a handicapped person and there are cases pending against the respondent-husband at Bharatpur, including the cases under the Domestic Violence Act as well as against the mother of the respondent-husband and therefore, the proceedings under Section 13 of the Act pending at Udaipur deserve to be transferred at Bharatpur. 3. The respondent-husband Nilaksh Dwivedi, who is also a practicing Advocate and appearing in person before this Court has opposed this transfer petition. He submits that the cases lodged against him and his mother are all false and in various complaints filed under the criminal matters, the police has either filed F.R. or is contesting the cases at Bharatpur. He also submitted that the petitioner-wife is a practicing lawyer at Bharatpur and she was also working as faculty in Khandelwal Law College at Bharatpur. He has submitted that the divorce petition under Section 13 of the Act has been filed on the ground of cruelty and desertion and the parties are living separately since 23.06.2012. He has also submitted that the efforts for mediation or reconciliation between the parties have failed, which were undertaken at Family Courts and even at the High Court at Jaipur Bench, Jaipur. He also submits that there are no possibilities of reconciliation between the parties and the demand of permanent alimony made by the petitioner-wife of Rs. 1.00 Crore is impracticable and impossible of compliance, and therefore, the efforts are being made just to harass the respondent-husband and the divorce petition thus, deserves to be tried on merits at Udaipur. 4. He also submits that there are no possibilities of reconciliation between the parties and the demand of permanent alimony made by the petitioner-wife of Rs. 1.00 Crore is impracticable and impossible of compliance, and therefore, the efforts are being made just to harass the respondent-husband and the divorce petition thus, deserves to be tried on merits at Udaipur. 4. On the last occasion, despite earlier mediation talks, in pursuance of the order of this Court dated 23.03.2015, having failed, this Court on 10.09.2015 again directed the learned counsel for the petitioner-wife, Mr.Rakesh Arora to keep the petitioner-wife present before this Court today i.e.06.10.2015, so that in the presence of the respondent-husband again an effort for reconciliation of the matrimonial disputes between the parties can be made by this Court. But today, the learned counsel for the petitioner-wife, Mr.Rakesh Arora informed the Court that she is unable to present herself today before this Court, as she has some interview call pending with her to be attended tomorrow i.e.07.10.2015. In support of his submission, he relied upon the decision of the Hon'ble Supreme Court in the case of Rajni Kumari v. Raghvinder Sahay @ Lal Babu, 2009(1) WLC (SC) Civil 530 , in which in peculiar facts transferred a matrimonial case from Bihar to New Delhi, finding that applicant was a non-earning person and wholly dependent upon her parents, could not travel to Bihar 1500 kms., every time for the case. The said case cannot be applied in the facts of the present case where the applicant-wife is a practicing Advocate, thus an earning person and the distance is also not so much. It is said to be about 500 kms. 5. Having heard the learned counsel for the petitioner-wife as well as the respondent-husband Nilaksh Dwivedi appearing in person, this Court is satisfied that there is no merit in the present transfer petition and the same deserves to be dismissed. 6. The grounds narrated by the petitioner-wife, as stated above, are not sufficient to unnecessarily transfer the case from Udaipur to Bharatpur. 6. The grounds narrated by the petitioner-wife, as stated above, are not sufficient to unnecessarily transfer the case from Udaipur to Bharatpur. The petitioner-wife is around 33 years of age and is also stated to be working as Lecturer in the Law College at Bharatpur, therefore, she is not a simple housewife, whose convenience should prevail over the convenience of the respondent-husband, who is also a practicing lawyer at Udaipur and has to attend his professional duties for his livelihood at Udaipur on day-to-day basis. Mere large number of cases filed by the petitioner-wife, namely 05 against the respondent husband and his mother at Bharatpur, indicates that the petitioner-wife has a tendency to lodge various cases merely because she feels that she is a practicing Advocate and she can use/misuse the law, and it is not always necessary that the convenience of the females should be allowed to have a march over the convenience of the males. The various provisions of Section 498-A and Domestic Violence Act are being misused these days in large number of cases to harass the poor husbands and his parents and even if they can come out clean after a long period of harassment and trial that itself becomes a punishment for them. The petitioner-wife has also not taken seriously the mediation efforts sought to be initiated by this Court, though earlier mediations had failed and in the last mediation also, in pursuance of the order of this Court dated 23.03.2015, she appeared for mediation talks, but the same could not succeed because of the high demand of the permanent alimony, as stated by the respondent-husband, and this time again she is not present before this Court, despite clear direction. The cases filed by her at Udaipur appear to be only to extort more and more amount of alimony. Her convenience alone and care of child, who is living with her grandparents are not sufficient grounds to transfer the case from Udaipur to Bharatpur. On the other hand, her going to Udaipur may pave the way for them for reconciliation of matrimony there. 7. In these circumstances, this Court is not inclined to transfer the proceedings of the divorce petition from Udaipur to Bharatpur. 8. Accordingly, the present transfer petition is dismissed. No cost. Copy of this order may be sent to the concerned parties as well as the learned court below forthwith.Petition dismissed. *******