Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 986 (MP)

Gunjan Shrivastava v. Abhishek Shrivastava

2017-09-07

G.S.AHLUWALIA

body2017
ORDER 1. This is an application under section 24 of the CPC for transfer of Case No.252-A of 2015 (HMA) pending in the Court of Principal Judge, Family Court, Gwalior to the Court of Additional District Judge, Aalot District Ratlam filed by the respondent under section 9 of the Hindu Marriage Act. 2. The necessary facts for the disposal of the present application in short are that the applicant was married to the respondent on 27.1.2012 as per Hindu rites and rituals at Gwalior and one male child was born and in the year 2015, when the present application was filed she was pregnant and was living along with her father at Tahsil Aalot, District Ratlam. The undisputed fact that Aalot, District Ratlam is situated at a distance of 700 kilometers from Gwalior and the applicant was pregnant in the year 2015 when the present application was filed. It is submitted that the respondent has filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights whereas the applicant has filed a report under section 498A of IPC in Police Station Aalot, District Ratlam and the charge sheet has been filed, which is pending in the Court of JMFC Aalot, District Ratlam. It is further submitted that the applicant has also filed an application under section 125 of CrPC against the respondent which is pending at Aalot, District Ratlam. It is submitted that the applicant has two minor children and it is very difficult for her to attend the proceedings at Gwalior initiated against her under section 9 of the Hindu Marriage Act by the respondent. Her father is in job and he cannot accompany her to Gwalior. It is further submitted that although the applicant has also filed an application under section 12 of the Protection of Women from Domestic Violence Act at Gwalior but the respondent himself is facing trial under section 498A of IPC as well as he is also appearing in the proceedings under section 125 of CrPC, therefore, in the interest of justice, the petition under section 9 of the Hindu Marriage Act may be transferred from the Court of Family Court Gwalior to the Court of Additional District Judge Aalot, District Ratlam. In short, thus, the submission made by the counsel for the applicant is the convenience of the applicant as well as the inability of the applicant to regularly prosecute the proceedings under section 9 of the Hindu Marriage Act at Gwalior on the ground that she is residing at Aalot, District Ratlam which is near about 700 kilometers distance from Gwalior and secondly, she is having two minor children and there is nobody in her family to accompany her to Gwalior on every date. 3. A reply was filed by the respondent in which he has stated that after the birth of the second child the applicant has visited Gwalior on several occasions and had made number of police complaints even during her pregnancy. She has also filed an application under section 12 of the Protection of Women from Domestic Violence Act at Gwalior and when the applicant can frequently visit Gwalior for making complaint against the respondent, then it is incorrect to say that she is unable to come to Gwalior for prosecuting the proceedings under section 9 of the Hindu Marriage Act. 4. Heard the counsel for the parties. 5. This application for transfer of case has been filed mainly on the ground of comparative hardship to the wife. This fact has not disputed by the respondent that the applicant is looking after two minor children and the distance of Aalot, District Ratlam from Gwalior is around 700 kilometers. 6. The Supreme Court in the case of Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap, reported in AIR 2016 SC 3584 , has held as under :- “5. Admittedly, the distance between Mumbai and Barshi is around 400 kilometers. Four cases between the parties are pending at Barshi. Apparently, the comparative hardship is more to the appellant- wife. The aspect of the matter, unfortunately, the High Court has missed to take note of.” 7. A Coordinate Bench of this High Court in the case of Sunita Viswakarma v. Brajesh Kumar Viswakarma by order dated 27th August, 2015 passed in Miscellaneous Civil Case No.1078 of 2014 has held as under :- “4. I have considered the submission made on behalf of both the sides. It is well settled in law that though section 24 of the Code of Civil Procedure confers power on the Court to transfer the proceeding yet this power has to be exercised with circumspection and care. I have considered the submission made on behalf of both the sides. It is well settled in law that though section 24 of the Code of Civil Procedure confers power on the Court to transfer the proceeding yet this power has to be exercised with circumspection and care. Convenience of parties have to be seen. See : Kulwinder Kaur v. Kandi Friends Education Trust and others [ (2008)3 SCC 659 ]. However, the Supreme Court has sounded a note of caution that leniency to women show by Court in such transfer matters are often misused and taken advantage of by women and, therefore, the Court is required to consider each case on its merits. In the case of Anindita Das v. Srijit Das [ (2006)9 SCC 197 ] and Sumita Singh v. Kumar Sanjay and another [ AIR 2002 SC 396 ], the Supreme Court has held that in a suit instituted by the husband, convenience of the wife has to be taken into account. In view of aforesaid enunciation of law by the Supreme Court, the application is allowed. The proceeding pending at Sagar, namely, RCS No.HM/0022/2014 is transferred to District Judge, Bhopal, who may either try the proceeding himself or may transfer to the Court of competent jurisdiction. The Court of Bhopal shall make an endeavour to conclude the proceeding, expeditiously. With the aforesaid directions, the application stands disposed of.” 8. Considering the fact that the applicant is looking after her two minor children and is residing at Aalot, District Ratlam which is 700 kilometers away from Gwalior, the application for transfer of the case is allowed. Accordingly, Case No.252-A/2015 pending in the Court of Principal Judge, Family Court Gwalior is transferred to the Family Court, Ratlam. 9. This miscellaneous civil case stands disposed of accordingly.