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2022 DIGILAW 1752 (ALL)

Divya v. Kuldeep Kumar Dwivedi

2022-11-09

J.J.MUNIR

body2022
JUDGMENT : (J.J. Munir, J.) 1. This is a transfer application by the wife, seeking transfer of Case No. 358 of 2018, Kuldeep Kumar Dwivedi v. Smt. Divya, under Section 13 of the Hindu Marriage Act, 1955 from Court of the Principal Judge, Family Court, Banda to the Family Court at Kanpur Nagar. 2. Heard Mr. Anil Kumar Srivastava, learned Counsel for the applicant and Ms. Priyanka Singh, learned Counsel appearing on behalf of the opposite party. 3. It is pointed out by learned Counsel for the applicant that there are two cases inter partes pending at Kanpur Nagar, details whereof are mentioned in Paragraphs Nos. 7 and 12 of the affidavit filed in support of the application. The submission is that in case the proceedings are moved from Banda to Kanpur Nagar, it would be convenient to both parties, who can request a single date there. It is next submitted that the applicant is a housewife and has no independent source of income. She stays with her father and a young son aged 10 years, whom she has to take care of. It is argued that given the financial constraints, it is not possible for the applicant to defend outstation proceedings at Kanpur Nagar, travelling on each date fixed from Banda to that station and back. It is pointed out that the opposite party is an Assistant Professor in the D.A.V. College, Gorakhpur and draws a salary of Rs. 1,40,000/- per month. The aforesaid Rs.1,40,000/- per month. The aforesaid fact is asserted in Paragraph No. 18 of the affidavit filed in support of the application. It is next submitted that the opposite party, who is an able-bodied man and financially well-off, can conveniently defend at Banda. He is far better placed than the applicant in the matter of defending outstation proceedings. It is also submitted that convenience of the wife, in causes matrimonial, has to be accorded primacy. 4. Upon hearing learned Counsel for parties, this Court finds that in Paragraph No. 7 of the affidavit filed in support of the transfer application, there is mention of an F.I.R. lodged by the applicant at Kanpur Nagar, giving rise to Case Crime No. 328 of 2018, under Sections 498A, 323, 354kha, 328 of the Indian Penal Code, 1860 and Section 3/4 of the Dowry Prohibition Act, 1961. In Paragraph No. 8 of the counter affidavit filed on behalf of the opposite party, this fact has not been denied at all, though the allegations in the F.I.R. are disputed. This Court finds that there is no assertion in Paragraph No. 7 that on the basis of the F.I.R., a charge-sheet has been filed and a case is pending before the Court. Therefore, of the two cases pending at Kanpur Nagar, as submitted by learned Counsel for the applicant, this Court finds that only one is pending, which is the application under Section 125 of the Code of Criminal Procedure, 1973, [for short “Cr.P.C.”], mention whereof is made in Paragraph No. 12 of the affidavit. The assertions in Paragraph No. 12 of the affidavit have not been denied in Paragraph No. 13 of the counter affidavit. The position, as stands established on record, is that one case is pending inter partes at Kanpur Nagar, that is to say, the one under Section 125 Cr.P.C. There is no case made out in the counter affidavit specifically to the effect that the opposite party has applied for transfer of the maintenance case out of Kanpur Nagar to Banda or any other district. It has been asserted in Paragraph No. 17 of the counter affidavit that the applicant and her father had quarrelled with the opposite party, when he went to Kanpur Nagar to defend the proceedings for maintenance under Section 125 Cr.P.C. There is also a complaint in this regard to the Station House Officer, Kotwali, annexed as Annexure No. CA-1 to the counter affidavit. Allusion in greater detail will be shortly made. 5. The fact, however, remains that notwithstanding the case of quarrel or altercation against the opposite party by the applicant and her father, no application seeking transfer of proceedings from Kanpur Nagar to Banda or any other station has been admittedly moved. Thus, the opposite party has to attend at Kanpur Nagar in connection with the maintenance case. If, therefore, the present proceedings are moved from Banda to Kanpur Nagar, both cases will be venued at the same station, which would permit ease of litigation for both parties. The parties can then request a single date there, leading to save of time, money and other resources for both parties. 6. Learned Counsel for the opposite party, Ms. If, therefore, the present proceedings are moved from Banda to Kanpur Nagar, both cases will be venued at the same station, which would permit ease of litigation for both parties. The parties can then request a single date there, leading to save of time, money and other resources for both parties. 6. Learned Counsel for the opposite party, Ms. Priyanka Singh, has vociferously opposed the prayer for transfer of these proceedings from Banda to Kanpur Nagar. It is her submission that the applicant and her father have abused and assaulted the opposite party on 25.05.2022, when he visited the Court at Kanpur Nagar to defend himself in the case under Section 125 Cr.P.C. brought by the wife. She has drawn the Court’s attention to Annexure CA-I to the counter affidavit, where a copy of the complaint addressed to the Station House Officer, Kotwali, Kanpur Nagar has been annexed, showing on its face, receipts of registered postal dispatch. A copy of the complaint has also been sent to the Commissioner of Police, Kanpur Nagar. There is also a copy of the report from the Casualty of UHM District Male Hospital, Kanpur Nagar annexed to the counter affidavit, which mentions some kind of injury, but the same is absolutely unintelligible. The episode mentioned in the complaint made to the Police does not appear to have been registered either as a Non-Cognizable Report or a crime. The description of the altercation is vague and does not apparently show any kind of a precipitate threat that the opposite party has legitimately apprehended to his life or limb. In the opinion of this Court, therefore, the material on record is not good enough to infer any threat to the opposite party, if he attends proceedings at Kanpur Nagar. 7. 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 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) 8. In the opinion of this Court, a fit case for transfer is made out. 9. In the result, this transfer application succeeds and stands allowed. The proceedings of Case No. 358 of 2018, Kuldeep Kumar Dwivedi v. Smt. Divya, under Section 13 of the Hindu Marriage Act, 1955 are withdrawn from the Principal Judge, Family Court, Banda and made over to the Principal Judge, Family Court, Kanpur Nagar, 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. 10. Let this order be communicated to the Principal Judge, Family Court, Banda and the Principal Judge, Family Court, Kanpur Nagar by the Registrar (Compliance).