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2016 DIGILAW 884 (MP)

Apeksha Yadav v. Amit Kumar Yadav

2016-10-03

H.P.SINGH

body2016
ORDER : H.P. Singh, J. 1. Heard learned counsel for the applicant and perused the matter. 2. This application under Section 24 of the Code of Civil Procedure, has been filed by the applicant, seeking transfer of Divorce Petition No. 46-A/2015, filed by the respondent, pending before the Court of I Addl. District Judge, Pipariya, District Hoshangabad (MP), from District Court Bhopal. 3. Briefly stated facts of the case are that applicant and respondent got their marriage solemnized on 24.4.2012, at Hoshangabad, according to Hindu customs and rites. The applicant stayed with her in-laws at Pipariya. The applicant came to Bhopal for preparing and appearing in the examination of B.Sc. The applicant and respondent both stayed for a period of one year in a rented premises at Saket Nagar Bhopal, from where the applicant had appeared in the said examination. The applicant felt that she was cheated by the respondent as the rent of the premises was borne by her parents. Thereafter, the respondent had left the applicant at her parental house at Bhopal. The applicant got surprised when she was served with the notice of Divorce Petition No. 46-A/2015 filed by the respondent against her under Section 13(1) of Hindu Marriage Act, before 1st Addl. District Judge Pipariya. 4. It is alleged that the applicant was harassed by the respondent continuously. The applicant filed an application under Section 24 of Hindu Marriage Act, before I Addl. District Judge Pipariya, which was allowed by the Court and Rs. 2,000/- per month was granted to the applicant as an interim maintenance. The respondent has also paid Rs. 5,000/- towards expenses. The case was fixed for recording evidence on 26.9.2016. Further, it is alleged by the applicant that she apprehends danger to her person and face financial crunches. It is further alleged that it would be very difficult for the applicant to defend herself and to produce the witnesses of Bhopal for examination, at Pipariya, District Hoshangabad. On these grounds, the applicant prays for transfer of said Divorce Petition No. 46- A/2015, pending before I Addl. District Judge Pipariya, District Hoshangabad to Bhopal. 5. On the other hand, responding the aforesaid, the respondent filed reply to the application denying all the allegations made against him, but nobody has appeared on his behalf to argue the matter. On these grounds, the applicant prays for transfer of said Divorce Petition No. 46- A/2015, pending before I Addl. District Judge Pipariya, District Hoshangabad to Bhopal. 5. On the other hand, responding the aforesaid, the respondent filed reply to the application denying all the allegations made against him, but nobody has appeared on his behalf to argue the matter. It is specifically stated by the respondent that he is already paying interim alimony and expenses of the litigation as directed by the trial Court, therefore, there is no necessity to transfer the case from Pipariya to Bhopal. He further stated that just to harass him, the present application has been filed. 6. I have heard the submission of learned counsel for the applicant, gone through the reply filed by the respondent and perused the material on record. 7. Learned counsel for the applicant submitted that the applicant would face great inconvenience if the case is not transferred to the Court at Bhopal. She would be subjected to cruel treatment by the respondent, if she appears and produce her witnesses for examination in the Court at Pipariya. 8. Learned counsel for the applicant relied in para 9 of a decision in the case of Jyoti vs. Sanjay, 2010 (4) MPLJ 391 , which is as follows:- "9. In the matter of transferring the cases from one Court to another, this Court has to consider the circumstance as laid down by the Apex Court in the matter of Kulwinder Kaur vs. Kandi Friends Education Trust, 2008 (4) MPLJ (SC) 9 : (2008) 3 SCC 659 , in which it was held as under:- "22. Although the discretionary power of transfer of cases cannot be imprisoned within a strait jacket 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. 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 plaintiff or 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 proceedings. 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. Keeping in view the principle laid down in the cited case, on examining the case at hand, the balance of convenience appears in favour of the applicant as she and her witnesses are residing at Bhopal. 10. In view of the aforesaid submissions made by learned counsel for the applicant and on perusal of the reply filed by the respondent and material available on record, it is crystal clear that in view of nature of their matrimonial dispute, petition for divorce has been filed by the respondent on the ground of alleged cruelty and demand of dowry against him. Since, there is apprehension in the mind of the applicant that on going to Pipariya for recording statements of witnesses, she may be subjected to an untoward incident by the respondent, the present MCC has been filed for transfer of the case from the Court at Pipariya to Bhopal. Since, there is apprehension in the mind of the applicant that on going to Pipariya for recording statements of witnesses, she may be subjected to an untoward incident by the respondent, the present MCC has been filed for transfer of the case from the Court at Pipariya to Bhopal. Even, on examining the case in hand, available facts and circumstances of the case, there appears balance of convenience in favour of the applicant as she can very well produce her witnesses and put her defence properly by attending the Court at Bhopal for fair trial, without any fear or coercion. 11. In view of the aforesaid analysis, it would be appropriate to transfer of the case from the Court at Pipariya to Bhopal and it is directed that the Divorce Petition No. 46-A/2015, filed by the respondent, pending before the Court of I Addl. District Judge, Pipariya, District Hoshangabad (MP), is transferred to District Court Bhopal, for its adjudication, in accordance with law. Accordingly, MCC stands disposed of.