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Allahabad High Court · body

2022 DIGILAW 1714 (ALL)

Farah Fatma v. Tipu Sultan

2022-10-31

J.J.MUNIR

body2022
JUDGMENT : Parties have exchanged affidavits. 2. Admit. 3. By consent of parties, heard forthwith. 4. Heard Mr. Sumit Daga, learned Counsel for the applicant and Mr. Gaurav Sharan Srivastava, learned Counsel appearing on behalf of the opposite party. 5. This application has been filed on behalf of the wife, seeking transfer of G.W. Case No. 6 of 2019, Tipu Sultan v. Smt. Farah Fatma, under Section 25 of the Guardians and Wards Act, 1890[“the Act of 1890” for short] from the Additional Principal Judge, Family Court, Maharajganj to the Family Court at Ghaziabad. 6. It is the applicant’s case that the parties’ marriage was solemnized on 25.12.2014 and a son was born of the wedlock of parties on 04.12.2015. The marriage ran into rough waters, leading to divorce on 23.07.2017. It is the applicant’s case that as per settlement between parties, their son was to stay with the mother and is, accordingly, residing with her. That after divorce, the opposite party remarried on 27.12.2017, and the applicant also remarried on 26.08.2018. The applicant’s case is that in order to harass her, the opposite party has moved an application under Section 25 of Act of 1890, seeking custody of the parties’ minor son before the Principal Judge, Family Court, Maharajganj. The applicant has filed her written statement in the said case on 17.12.2019. The applicant’s husband, one Shamim Ul Haq, who is a doctor, is working with Ganesh Ortho Trauma & Medical Center at F-15/7 Krishna Nagar, Ghaziabad and resides at Indirapuram, Ghaziabad. The applicant stays with him at Ghaziabad. The parties’ son stays with the applicant at Ghaziabad. It is the applicant’s case that another child has been born to her, who is an infant. He is to be taken care of. In the circumstances that the applicant is placed in, it is not possible for her to travel on each date scheduled at Maharajganj and defend the guardianship case filed by the opposite party there. The distance between the two stations is about 850 kilometres, one way. The applicant’s circumstances, particularly physical, do not permit her journeying between the two stations to defend proceedings at Maharajganj. Apart from other things, it is argued that convenience of the wife is to be accorded primacy, in causes matrimonial. 7. Learned Counsel for the opposite party has opposed the prayer for transfer. The applicant’s circumstances, particularly physical, do not permit her journeying between the two stations to defend proceedings at Maharajganj. Apart from other things, it is argued that convenience of the wife is to be accorded primacy, in causes matrimonial. 7. Learned Counsel for the opposite party has opposed the prayer for transfer. There is on record a counter affidavit filed in answer to the supplementary affidavit, which shows that the applicant was earlier residing at Gorakhpur and leading a peaceful married life. The opposite party is a Senior Resident of Anesthesia in the Department of Anesthesia, Government Hospital, Siddharthnagar, where he has to perform a 24-hour duty. He has to attend to the Operation Theatre on call, at a short notice of 15 minutes. There is a restriction on leave for the opposite party, which he is granted for not more than five days in a year. The opposite party prays that the case be transferred somewhere midway between Maharajganj and Ghaziabad. 8. Upon hearing learned Counsel for parties and perusing the record, this Court finds that the applicant is living with her husband at Ghaziabad, where the child of the parties stays with her and her husband. She is a housewife and has to take care of the household, including the minor son of parties and the still younger child begotten of her second marriage. In the circumstances, to require the applicant to travel all the distance from Ghaziabad to Maharajganj, a distance of 850 kilometres one way, would be to bring not only the applicant, but also her entire family, including the young children, under grave stress and difficulties. There is, for the same reason, no justification to transfer the case to a station midway between Ghaziabad and Maharajganj. The opposite party has instituted proceedings at Maharajganj himself, seeking custody of his minor son. If he has to pursue proceedings, he would have to do that according to the forum of convenience to the applicant, because the settled principles lean in favour of venue chosen by the wife in matrimonial causes. The opposite party, despite the constraints of his occupation that he alleges, is, nevertheless a financially capable and physically abled-bodied man, compared to the applicant, who is a woman dependent upon her husband, whom she has now married. As such, the opposite party is better placed in attending outstation proceedings. 9. The opposite party, despite the constraints of his occupation that he alleges, is, nevertheless a financially capable and physically abled-bodied man, compared to the applicant, who is a woman dependent upon her husband, whom she has now married. As such, the opposite party is better placed in attending outstation proceedings. 9. Quite apart, convenience of the wife about the venue is favoured in matrimonial causes and nothing has been shown in this case to make it different from the rule. In this regard, reference may be made to the decision of the Supreme Court in Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374 , where it has been held that in matrimonial causes, convenience of the wife is a good ground to consider while granting a transfer. In this connection, reference may be made further to the recent decision of the Supreme Court in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199 where on the issue in hand, it has been held : "9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial 4 matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer." (Emphasis by Court) 10. In the result, this transfer application succeeds and stands allowed. The proceedings of G.W. Case No. 6 of 2019, Tipu Sultan v. Smt. Farah Fatma, under Section 25 of the Guardians and Wards Act, 1890 are withdrawn from the Additional Principal Judge, Family Court, Maharajganj and made over to the Principal Judge, Family Court, Ghaziabad, who shall proceed to try the petition himself or assign it to an Additional Principal Judge available on the Court, as he deems fit. In either case, trial shall be expedited and endeavour made to conclude the same within six months of the date of receipt of a copy of this order. 11. Let this order be communicated to the Additional Principal Judge, Family Court, Maharajganj and the Principal Judge, Family Court, Ghaziabad by the Registrar (Compliance).