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Madhya Pradesh High Court · body

2017 DIGILAW 319 (MP)

Kirti Sharma v. Devesh Sharma

2017-03-02

VIJAY KUMAR SHUKLA

body2017
ORDER : Vijay Kuma Shukla, J. This is a petition filed under section 24 of the Code of Civil Procedure by applicant/wife for transfer of matrimonial matter bearing H.M.A. No. 223/2014 pending before the Family Court, Bina to Family Court, Gwalior. 2. It is submitted by the applicant that her marriage was solemnized with the respondent on 9/01/2014 at Tahsil Bina (MP) as per Hindu Rites and Traditions. It is pleaded that after the marriage the applicant went to her matrimonial house to reside with her husband but thereafter, she came to know from the respondent that the said marriage was against his will and the same had taken place due to influence of his parents and he did not willingly agree to stay with the applicant and, therefore, she had withdrawn herself from his company and is living separately at Gwalior. It is alleged that she was subjected to physical abuse many times by him and, therefore, she was forced to leave the house of her in-laws and to live separately. It is also stated that she has filed an application for maintenance u/s 125 of Cr.P.C. but the same has been rejected and against the said order a revision has been preferred which is pending at Gwalior. In addition to that, one complaint u/s 12 of Protection of Women from Domestic Violence Act, 2005 bearing MJC No. 6900150/2016 filed before the Additional Chief Judicial Magistrate, Gwalior, is also pending. It is submitted that the respondent/husband has filed a case for restitution of conjugal rights before the Family Court, Bina u/s 9 of Hindu Marriage Act, 1955. 3. Counsel for the applicant submits that the applicant is unemployed lady and she has no source of income. Because of the financial stringency and crisis it is impossible for her to travel from Gwalior to Bina to afford travel and other expenses. The distance from Gwalior to Bina is stated to be approximately 300 kms and, therefore, it would be inconvenient for her to attend every date of hearing at Bina. It is also submitted that there is likelihood of physical assault to her and influence proceedings of the court. 4. Counsel for the applicant relied on the judgment passed by the Apex Court in the case of Sumita Singh v. Kumar Sanjay and another, AIR 2002 SC 396 . It is also submitted that there is likelihood of physical assault to her and influence proceedings of the court. 4. Counsel for the applicant relied on the judgment passed by the Apex Court in the case of Sumita Singh v. Kumar Sanjay and another, AIR 2002 SC 396 . In the said case, it is held that in the cases of transfer filed by the applicant it is the wive's' convenience which must be looked to, and considering the distance of about 100 kms from Delhi to Ara, the Apex Court transferred the matrimonial matter from Ara to Delhi. He also relied on the judgment passed in the case of Rajwinder Kaur v. Balwinder Singh, (2003) 11 SCC 726. In the said case, considering the convenience of the wife and her difficulty to travel alone to cover distance of approximately 700 kms and the fact that she had four years old daughter which were not disputed by the husband, the Apex Court allowed the transfer petition filed by the wife and transferred the case from Barmer, Rajasthan to Chandigarh. Reliance has also been placed on an order passed by this Court in the case of Smt. Shobhna Swarnkar v. Rahul Soni passed in MCC No. 2303/2014 dated 21/09/2014 [2015 MPLJ online 8] whereby this Court relying on the judgment passed by the Apex Court and also the judgment passed in the case of Kulwinder Kaur v. Kandi Friends Education Trust and others, 2008 (3) SCC 659 and the judgment passed in the case of Rajwinder Kaur v. Balwinder Singh, (2003) 11 SCC 726 held that the convenience of the wife in the cases of transfer of matrimonial matter is a relevant consideration and considering the ill health of the applicant/wife and that there is no means of conveyance, transferred the case from Bhopal to Jabalpur. 5. Per contra, combating the aforesaid submissions, counsel for the respondent submits that applicant has already entered her appearance in the matrimonial matter at Bina. She has attended two to three times proceedings before the family court and she has already obtained necessary permission from the court to be represented through counsel and now in matrimonial proceedings, it is not necessary for her to attend each and every date. It is further stated that the Gwalior is well connected through Railway Conveyance to Bina which is hardly 300 kms journey by train. It is further stated that the Gwalior is well connected through Railway Conveyance to Bina which is hardly 300 kms journey by train. He also submits that respondent is ready to pay her travel expenses and other allowances to attend the dates of hearing at Bina. 6. Counsel for the respondent relies on the judgment passed by the Apex court in the case of Kulwinder Singh (supra) and referred to paras 22 and 23 where the Apex Court has laid down certain broad propositions as to what may constitute a ground for transfer. It is held that the balance of convenience or inconvenience to the defendant or the witnesses is a relevant consideration. It is also held that reasonable apprehension in the mind of the litigant that he might not get justice in the Court where the suit is pending and the paramount consideration is 'interest of justice' for both the parties. Para 23 of the said judgment is reproduced as under:- "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 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." 7. 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." 7. Counsel for the respondent further relied on the judgment passed in the case of M. Sivagami v. R. Raja, (2005) 12 SCC 301 where the Apex Court on consideration of the facts and the circumstances of the said case directed the respondent/husband to pay Rs. 5000/- by way of initial litigation costs to the wife in order to cover her costs and those of her witnesses and for other expenses related thereto. He referred to the judgment passed by the Apex Court in the case of Gargi Konar v. Jagjeet Singh, (2005) 11 SCC 446 . Reliance has also been placed to the judgment passed by the Apex Court in the case of Jitendra Singh v. Bhanu Kumari and others, (2009) 1 SCC 130 where it has been held that the Court has got the discretionary power to transfer the cases but while passing such an order of transfer of a case, the court must act judicially in ordering transfer on the application by a party. This was not a case of transfer of matrimonial matter. 8. Having considered the submissions of the parties, I am of the considered view that in the present case the balance of convenience or inconvenience is in favour of the husband. The facts of the present case are to be tested on the anvil of the law laid down by the Apex Court in para 25 of the judgment passed in the case of Kulwinder Kaur (supra) The applicant has already appeared in the suit proceedings filed by the respondent. She had attended the proceeding two to three times and has also been granted permission to be represented by an Advocate. The main contention of the applicant is that there is financial crunch with the applicant to attend the proceedings from Gwalior to Bina. She had attended the proceeding two to three times and has also been granted permission to be represented by an Advocate. The main contention of the applicant is that there is financial crunch with the applicant to attend the proceedings from Gwalior to Bina. So far as the other contention that there is likelihood of any mishap with the applicant, on being asked, the counsel for the applicant fairly admitted that no such complaint has been made by the applicant and no such incident has occurred so far in the proceedings pending before the court at Bina. No other inconvenience is expressed on behalf of the applicant except that her allegations have not been denied by the respondent and, therefore, the same be treated to be admitted. 9. In the backdrop of the aforesaid authoritative pronouncement, I am of the considered view that applicant could not make out a case for transfer from Bina to Gwalior as Gwalior is well connected by train facilities to Bina. So far as the financial difficulty expressed by the applicant is concerned, counsel for the respondent submits that respondent/husband will make appropriate deposit to bear the expenses of the wife as may be determined by the court. He will ensure that the applicant may not handicap to defend the proceedings on account of financial difficulty and in this regard, the competent court may be directed to pass the orders from time to time for further deposit. In the case of Gargi Konar (supra) the court has held that the poor financial capacity of the wife is not a ground for transfer of matrimonial matter and in the said case the husband was directed to bear the expenses of the wife. The relevant paras 2 and 3 of the judgment of Gargi Konar (supra) are reproduced as under:- "2. The only ground made out in the transfer petition by the petitioner wife is that she is a helpless woman fully dependent upon her father and that her financial capacity is not such so that she can contest the proceedings in Bhatinda in the State of Punjab. 3. In our view, this is not a ground for transfer at all. The respondent can be directed to pay for her and her companion, to-and-fro and stay, expenses on every occasion on which she is required to travel. 3. In our view, this is not a ground for transfer at all. The respondent can be directed to pay for her and her companion, to-and-fro and stay, expenses on every occasion on which she is required to travel. The Additional Civil Judge before whom the case is pending is directed to quantify the amount and to ensure that the same is paid to her on every occasion that she is required to remain present in the court. With these directions, the transfer petition stands dismissed." 10. In view of the aforesaid discussion of the facts and law, the application for transfer of the matrimonial case of the applicant is rejected. The respondent/husband is directed to pay the applicant and her companion to-and-fro and stay expenses on every occasion on which she is required to travel from Gwalior to Bina. The respondent is also directed to ensure that no kind of inconvenience in this regard or in the proceedings is caused by him to the applicant. The Family Court at Bina is directed to quantify the amount in this regard and to ensure that the same is paid to her on every occasion that she is required to remain present in the court. 11. With these directions, the transfer petition stands dismissed.