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2019 DIGILAW 1068 (ALL)

Sonia Varshney v. Mukul Gupta

2019-04-24

ALOK MATHUR

body2019
ORDER : Alok Mathur, J. 1. Heard Smt. Sonia Varshney, Petitioner in person and Sri Shireesh Kumar, learned counsel for the opposite party. 2. The applicant has preferred the aforesaid transfer applications under section 24 of the CPC for transfer of Suit No. 1994 of 2008 -Mukul Gupta versus Sonia Varshney, pending in court of the Principle Judge, Family Court, Lucknow, under Section 13 (a) of the in the Hindu Marriage Act (in Transfer Application No. 36 of 2019) and Original Suit No. 459 of 2019 - Sonia Varshney versus Mukul Gupta, pending in court of the Principle Judge, Family Court, Lucknow, under Section 22 of the Special Marriage Act, 1954 (in Transfer Application No. 35 of 2019), to any other Court of competent jurisdiction at Allahabad. 3. Since both the cases involve similar set of facts, this Court proceeds to decide both the cases by means of this judgment. 4. The applicant who has appeared in person, contends that her marriage was solemnized with the respondent on 11/06/1997 according to Hindu rites and Customs at Lucknow. Notice of the intended marriage was signed on 28/04/1997 under Special Marriage Act and marriage was solemnised on 13/06/1997, wherein the certificate was also issued under the Special Marriage Act, 1954. After the marriage the applicant along with the respondent resided at C - 79, Butler Palace Colony, Lucknow which is the residence of father of the respondent and performed her marital obligations. Out of the wedlock between the applicant and the respondent a female child has been born on 09/12/2000. 5. After some time differences arose between the applicant and respondent, due to which applicant left her matrimonial house and subsequently the respondent filed an application under Section 13 of the Hindu Marriage Act in the court of Principal Judge, Family Court, Lucknow being Case No. 305 of 2002 (renumbered as 1994 of 2008). 6. The applicant filed Transfer Application No. 75 of 2002, in Case No. 305 of 2002 (Mukul Gupta vs. Sonia Varshney), which was allowed and the case was transferred from the Court of Principal Judge, Family Court, Lucknow to Principal Judge, Family Court, Allahabad for disposal by means of order dated 03/12/2002. 7. 6. The applicant filed Transfer Application No. 75 of 2002, in Case No. 305 of 2002 (Mukul Gupta vs. Sonia Varshney), which was allowed and the case was transferred from the Court of Principal Judge, Family Court, Lucknow to Principal Judge, Family Court, Allahabad for disposal by means of order dated 03/12/2002. 7. Subsequently an application for recall was moved by the respondent, and this Court, by means of order dated 10/03/2003, recalled its earlier order dated 03/12/2002 and transferred the aforesaid case to Family Court at Raebareli, and further directed that in case no Family Court exists at Raebareli then the case shall be tried by Civil Judge (Senior Division), Raebareli for disposal according to law. 8. The respondent moved an application under Section 24 CPC seeking transfer of Suit No. 305 of 2002, from the Court of Civil Judge (Senior Division) Raebareli to the court of Principal Judge, Family Court, Lucknow. This Court by detailed order dated 15/10/2008, took note of the fact that the applicant is contesting 19 cases which are pending in various Courts in city of Lucknow, and their daughter is also studying in City Montessori School, Lucknow and as per the applicant's own admission her daughter is living in a hostel and she is receiving a substantial amount of Rs. 28,000/- as maintenance from her husband to sustain her life and has also been provided accommodation in the city as per directions of the Division Bench of this Court, in the interest of Justice allowed the application seeking transfer of Regular Suit No. 305 of 2002 from the Court of Civil Judge (Senior Division), Raebareli to the court of Principal Judge, Family Court, Lucknow with a direction that the case will be decided within a maximum period of 6 months'. 9. It has further been submitted that the applicant had initiated criminal proceedings against the respondent, his parents and married sisters against which the respondent preferred a Special Leave Petition (Criminal) before the Hon'ble Supreme Court, and by means of order dated 06/02/2009, the Hon'ble Supreme Court agreed to hear the matrimonial dispute as well as the Criminal Case together and called upon the litigating parties for mediation before Hon'ble Supreme Court on 02/04/09 and also stayed the proceedings in Suit No. 1994 of 2008 pending before the court of Principal Judge, Family Court, Lucknow. By means of order dated 5th of February 2016, the Special Leave Petition was converted into Criminal Appeal No. 1281 of 2011, which was partly allowed and the proceedings against the married sisters of the of the respondent were quashed and the Criminal Appeal was disposed of with a direction that the Trial Court will decide the proceedings as expeditiously as possible. 10. Subsequently the respondent filed an application under Article 227 of the Constitution of India for enforcement of the early disposal of case orders passed by this Court as well as of the Hon'ble Supreme Court for expeditious disposal of Regular Suit No. 1994 2008, and on 24/10/2018, this Court summoned the Principal Judge, Family Court, who submitted an undertaking that the case would be decided within a period of 4 months. The applicant had filed an application for recall of the order dated 24/10/2018, and also prayed for extension of time for disposal of the Regular Suit No. 1994 2008 but the application was rejected by means of order dated 15/11/2018, and the application for modification of the said order was also rejected on 26/11/2018. 11. It has further been brought on record that the dispute between the parties was also referred to the Mediation and Conciliation Centre, Lucknow for mediation, and there also no settlement could be arrived at. 12. Another relevant fact in the chequered history of this litigation is that on the writ petition preferred by the respondent, this Court, by means of order dated 01/06/2005, directed the Civil Judge, Raebareli to conclude proceedings of the Suit, expeditiously, as far as possible within a period of 3 months from the date of certified copy of the order is produced before him. 13. In the present application for transfer, the applicant has sought the transfer of Suit No. 1994 of 2008 from the Court of Principal Judge, Family Court, Lucknow to Principal Judge, Family Court, Allahabad, on the ground that the applicant is presently residing at Allahabad on account of the services that Kendriya Vidayalay, Allahabad and she is not able to get leave to participate and attend the proceedings before Family Court, Lucknow. 14. 14. The application has been vehemently opposed by the respondent on the ground that the present application is only an attempt to delay the proceedings of the case pending before the Family Court, Lucknow, which are at the final stage, and any interference at this stage would delay the conclusion of the proceedings, and the same will be against the letter and spirit of the directions issued by this Court as well as of the Hon'ble Supreme Court. It has also been submitted that the applicant has been repeatedly filing frivolous applications only to prolong the litigation, and this application is also a step in this direction. 15. It has also been submitted that earlier also the applicant had filed an application under Section 24 of the C.P.C. for transfer of the case from Lucknow to Allahabad and vide order dated 03/12/2002 the case had been transferred to Allahabad, and subsequently the opposite party had moved an application for modification of the order dated 03/12/2002, and on the application the case was transferred from Allahabad to Civil Judge (Senior Division), Raebareli by means of order dated 10/03/2003. When the applicant did not permit the progress of the proceedings at Raebareli, then the opposite party had moved an application under Section 24 of the C.P.C. for transfer of the said matrimonial case from Civil Judge (Senior Division), Raebareli to the Court of Principal Judge, Family Court, Lucknow, which application was allowed by means of order dated 15/10/2008. It is further observed by the High Court that the case would be decided within a maximum period of 6 months. 16. In the meanwhile the criminal proceedings initiated by the applicant against the opposite party and his family members reached the Hon'ble Supreme Court, and the Hon'ble Supreme Court also directed the Trial Court to decide the proceedings expeditiously. It has been vehemently stated that despite the direction of the Hon'ble Supreme Court to decide the proceedings expeditiously, the matter is pending for the last 3 years. It has been vehemently stated that despite the direction of the Hon'ble Supreme Court to decide the proceedings expeditiously, the matter is pending for the last 3 years. The opposite party had also filed an application under Article 227 of the Constitution of India for expeditious disposal of Suit No. 1994 2008 and by means of order dated 24/10/2018, after submitted an undertaking by the Principal Judge, Family Court, Lucknow, it was directed that the case be decided within a period of 4 months, and despite expiry of the said period, the matter is pending before the Trial Court. It has also been stated that the application for recall of the order dated 24/10/2018 and also for extension of time for disposal of Regular Suit No. 1994 of 2008 has been rejected by means of order dated 15/11/2018. The applicant has moved an application for modification of order dated 15/11/2018 and also for extension of time for disposal of Regular Suit No. 1994 of 2008 but the said application is also been rejected by means of order dated 26/11/2018. It has also been stated that the applicant on one pretext or the other is not permitting the Principal Judge, Family Court, Lucknow to conclude the proceedings, and the applicant had also filed a First Appeal No. 159 of 2018 against the interim order, wherein this Court had directed the parties to appear before the Mediation Center, where the situation became uncontrollable resulting in failure of the mediation proceedings, and subsequently the First Appeal was dismissed by means of order dated 05/03/2019. 17. The applicant had also filed another First Appeal No. 13 of 2019, against an interlocutory order, which is also dismissed on 24/01/2019. The applicant had moved an application for recall of the said order dated 24/01/2019, which was rejected on 15/02/2019. The opposite party has submitted that on every date the applicant moves an miscellaneous application with intention to delay the conclusion of the regular suit only with a view to linger on the proceedings. 18. The applicant had moved an application for recall of the said order dated 24/01/2019, which was rejected on 15/02/2019. The opposite party has submitted that on every date the applicant moves an miscellaneous application with intention to delay the conclusion of the regular suit only with a view to linger on the proceedings. 18. With regard to the fact that the applicant is now posted in Allahabad and working in the Kendriya Vidayalay it has been submitted that the applicant is continuously absenting herself without information from the Kendriya Vidayalay and therefore the memo dated 15/02/2019, has been issued, but she has not replied to the memo which could indicate whether her absence was related to her appearance in the Suit No. 1994 of 2008 or not, and therefore this fact cannot be relied upon to transfer the said proceedings. 19. It has also been submitted that the applicant herself has filed various proceedings which are pending in various Courts at Lucknow namely:- 1. Criminal Case No. 3935/08 in the court of Chief Judicial Magistrate, Lucknow; 2. Criminal Misc. Application No. 7639 of 2008, filed under Section 482/483 Cr.P.C. pending in the High Court, Lucknow; 3. Suit No. 459 of 2019, under Section 22 of the Special Marriage Act pending in court of Principal Judge, Family Court, Lucknow 20. While on the other hand no case is pending at Allahabad, and therefore there is no reasonable ground for transfer of the Suit at Allahabad which is only to see that the said Suit is not decided and kept pending only with a view to harass the opposite party. It has also been stated that the applicant has also engaged an Advocate to represent her, and the matter is listed for final hearing, and at this stage presence of the applicant is not required and as such no hardship is being caused to the applicant and therefore the present application is bereft of merits and liable to be rejected. 21. I have heard the counsel for the parties and perused the record. 22. The undisputed facts in the present case are that the applicant and the respondent have married on 11/06/1997 and a girl child was born on 06/12/2000, they lived together in the matrimonial home at Pune till 30/10/2001, when the applicant left the matrimonial home, and subsequently, series of litigations between them commenced. 22. The undisputed facts in the present case are that the applicant and the respondent have married on 11/06/1997 and a girl child was born on 06/12/2000, they lived together in the matrimonial home at Pune till 30/10/2001, when the applicant left the matrimonial home, and subsequently, series of litigations between them commenced. The Divorce Suit under Section 13 of the Hindu Marriage Act was filed by the opposite party on 02/04/2002 before Family Court, Lucknow, which suit is pending and is in the final stages of hearing. 23. In the Excise of power under Section 24 of the C.P.C., the said suit was transferred from Lucknow to Allahabad by means of an order of this Court dated 03/12/2002, and subsequently by means of order dated 10/03/2003 was transferred from Allahabad to Raebareli, and subsequently by means of order dated 15/10/2008 from Raebareli to Lucknow. The proceedings are continuing at Lucknow since last 11 years. 24. This Court on numerous earlier occasions has directed expeditious disposal of the suit. By means of order dated 01/06/2005 in Writ Petition No. 3412 of 2005 this Court had directed the Civil Judge, Raebareli to conclude the proceedings expeditiously as far as possible within a period of 3 months from the date of certified copy of the order is produced before him. 25. In Civil Misc. Case No. 83 of 2008, by means of order dated 15/10/2008, this Court passed an order to the effect that the suit shall be heard and disposed of expeditiously in accordance with law, within a maximum period of 6 months from the date of presentation of the certified copy of this order before the Principal Judge, Family Court, Lucknow. 26. In Misc. Single No. 30491 of 2008, this Court after summoning the Principle Judge, Family Court, Lucknow disposed of the petition with a direction to decide the pending matter within a period of 4 months, as per the statement given by him after the opportunity of hearing to all the concerned parties in accordance with law. 27. The applicant being a lady has sought the suit to be transferred again to Allahabad on the ground that she has got a job in Kendriya Vidayalay and it is difficult for her to obtain leave from the school to attend the proceedings. 28. 27. The applicant being a lady has sought the suit to be transferred again to Allahabad on the ground that she has got a job in Kendriya Vidayalay and it is difficult for her to obtain leave from the school to attend the proceedings. 28. In order to adjudicate the present controversy it is relevant to find out the stage of the proceedings and the requirement of the personal presence of the applicant before the Trial Court, as well as the balance of convenience between the parties to decide the best forum to adjudicate the suit in question. 29. It has also been submitted that the applicant is receiving Rs. 28,000/- per month as maintenance from the opposite party as per the directions of the Court, which fact also finds mention in the order dated 06/02/2009 of the Hon'ble Apex Court in Civil Appeal No. 128 of 2011. She has been litigating before various Courts at Lucknow and the number of orders annexed along with the application as well is the counter affidavit filed by the opposite party, it is evident that applicant is well versed with the legal procedure and is effectively pursuing her cause. It has not been denied that the Regular Suit No. 1994 of 2008, which is pending before the Principal Judge, Family Court, Lucknow, is listed for final hearing. The applicant is duly represented by an Advocate before the Principal Judge, Family Court, Lucknow, and the stage of evidence is over, and therefore the personal appearance of the applicant is not required in the present suit. 30. Apart from the above it is clear that the said suit has been pending for last 17 years, and there are various orders as have been passed, for expeditious disposal of the proceedings. At one stage, the Principal Judge, Family Court, Lucknow was summoned before this Court, who give an undertaking that the said suit would be concluded within 4 months, which period expired in February 2019. Needless to say that at the stage it would be extremely inequitable to transfer the proceedings to Allahabad, which direction may not be in consonance with the earlier orders of this Court, because it will inevitably lead to further delay, which would be a guiding factor in deciding the present controversy. 31. Needless to say that at the stage it would be extremely inequitable to transfer the proceedings to Allahabad, which direction may not be in consonance with the earlier orders of this Court, because it will inevitably lead to further delay, which would be a guiding factor in deciding the present controversy. 31. It is also seen that the applicant herself has instituted certain cases which are pending before courts of competent jurisdiction at Lucknow itself, and the applicant herself is pursuing those cases at Lucknow for which no application for transfer has been moved, and therefore it is not comprehensible as to why only the divorce petition is being sought to be transferred, which according to the opposite party is only to cause delay, and this Court would not assist the applicant in such a situation where the cases are being sought to be transferred only to delay the adjudication, specially at this stage where the matters are listed for final hearing. 32. It is settled law that there should be sufficient and cogent grounds for transfer of case from one Court to another. In the present set of circumstances, arising in the case in hand, after due examination of all the facts on record and earlier orders of this Court as well as of the Apex Court, I do not find any sufficient ground to allow the applications. 33. In the light of the above the prayer made in the aforesaid transfer applications are declined. 34. The applications are hereby rejected. 35. The Principal Judge, Family Court, Lucknow is directed to decide Suit No. 1994 of 2008 (Mukul Gupta versus Sonia Varshney), under Section 13 (a) of the Hindu Marriage Act, as well as Original Suit No. 459 of 2019 (Sonia Varshney versus Mukul Gupta), under Section 22 of the Special Marriage Act, 1954, expeditiously, in terms of earlier order of this Court.