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2022 DIGILAW 767 (ALL)

Priyanka Spring v. Alok Saxena

2022-05-13

JASPREET SINGH

body2022
JUDGMENT : 1. Heard Shri Amitabh Pratap Singh, learned counsel for the petitioners and Shri Agendra Sinha, learned counsel appearing for the respondent. 2. The instant petition has been preferred under Section 24 CPC seeking transfer of Case No.67 of 2017 (Alok Saxena Vs. Priyanka Spring & another)under Section 25 of the Guardian and Wards Act, 1890 pending in the Court of Additional Principal Judge, Court No.6, Family Court, Lucknow to the appropriate court in District Prayagraj. 3. It will be relevant to notice that the petition was preferred alongwith an affidavit filed by Shri Rohit Spring being the real brother of the petitioner no.1 and maternal uncle of the petitioner.2. 4. An objection was raised by Shri Agendra Sinha, learned counsel for the respondent that the petition could not be entertained since it was not supported by an affidavit of the petitioners. 5. Noticing the aforesaid, learned counsel for the petitioners on 04.05.2022 filed a supplementary-affidavit duly sworn by the petitioner no.1 Priyanka Spring wherein she reiterated the contents of the transfer application. It is also urged by the learned counsel for the petitioners that since the matter is pending before this Court and the petitioner no.1 has already filed an affidavit in support of the application for transfer. Thus, even though the initial affidavit may have been not appropriate but nevertheless since better affidavit of the petitioner no.1 herself has been now filed and available on record. The matter may be heard and decided on merits. 6. The record would also indicate that both the petitioners and the respondent have filed their counter-affidavit, rejoinder-affidavit and supplementary counter-affidavit as well, which are all part of the record. 7. Learned counsel for the petitioners submits that the petitioner no.1 and the respondent were married on 05.02.2002 in accordance with the provisions of the Special Marriage Act. From the said wedlock, a male child was born on 16.09.2006 i.e. the petitioner no.2 who is now residing with the petitioner no.1 in Prayagraj since 2015. Allegations have been levelled that the respondent did not take care and perform his responsibilities towards both the petitioners and as such the parties have been residing separately since 2013 and the petitioner no.2 since separation is residing with the petitioner no.1. 8. Allegations have been levelled that the respondent did not take care and perform his responsibilities towards both the petitioners and as such the parties have been residing separately since 2013 and the petitioner no.2 since separation is residing with the petitioner no.1. 8. It is also urged that the respondent is a practicing lawyer at Lucknow while the petitioner no.1 is teaching in a private school in Prayagraj. It has also been asserted by the petitioners that the respondent has taken an ex parte divorce against the petitioner no.1 and since the relations between the petitioners and the respondent had broken to such an extent that she abided by the divorce decree and did not either challenge the ex parte decree or initiate any proceedings on her own. 9. It is further submitted that in order to further harass the petitioners, the respondent instituted a petition under Section 25 of the Guardian and Wards Act, 1890 registered as Case No.67 of 2017 pending before the Family Court at Lucknow. Since the respondent was a practicing lawyer hence he created an undesirable atmosphere which precludes the petitioners to pursue the case before the Family Court at Lucknow, appropriately. 10. So much so that the petitioners were earlier living at Lucknow and since 2015 is residing in Prayagraj and now since the petitioner no.2 has also gained age and is admitted in school in a higher class, it is very difficult for the petitioners to live at Prayagraj and attend the proceedings at Lucknow especially where the petitioner no.1 will not only miss her school where she is teaching but even the petitioner no.2 the minor son has to miss his school which is also not desirable as he has to undertake proper studies and there is no robust family support system with the petitioners where she can leave her minor son petitioner no.2. In the aforesaid circumstances, it is prayed that the proceedings be transferred from Lucknow to Prayagraj. 11. Learned counsel for the respondent vehemently opposed the plea for transfer and has submitted that the conduct of the petitioner no.1 is such that she is not entitled to any equitable remedy or relief from the Court. In the aforesaid circumstances, it is prayed that the proceedings be transferred from Lucknow to Prayagraj. 11. Learned counsel for the respondent vehemently opposed the plea for transfer and has submitted that the conduct of the petitioner no.1 is such that she is not entitled to any equitable remedy or relief from the Court. It has been submitted that time and again the Courts have passed several orders directing the petitioner no.1 to facilitate the meeting/visiting rights of the petitioner no.2 and the respondent but the same has been thwarted. 12. It is also urged that several petitions, came up to the High Court, as filed between the parties and despite the petitioner no.1 having given an undertaking as recorded in the orders yet she has not abided by the same. The consequence of the deliberate avoidance of the orders passed by the Hon'ble High Court at the behest of the petitioner no.1 is such that the respondent is unable to meet his own son despite order passed by the Court and as a result the respondent is suffering a great hardship and even otherwise the petitioner no.1 herself is not appearing before the court and in the aforesaid circumstances, even if the proceedings are transferred the conduct of the petitioners is such that she will not appear which will lead to undue harassment of the present petitioner no.1 who has already been deprived of the love and affection of his own son primarily by the petitioner no.1. In the aforesaid circumstances, it is urged that the petition deserves to be dismissed. 13. Having considered the submissions of the learned counsel for the parties and from the perusal of the material on record. In so far as the fact that the petitioner no.1 and the respondent have been divorced, is not disputed. It is also not disputed that the petitioner no.2 is residing with the petitioner no.1 and both of them are now based out of Prayagraj. It is also not disputed that the petitioner no.1 is working as a teacher in a private school whereas the petitioner no.2 is taking education in school at Prayagraj. 14. In the aforesaid backdrop, now the only issue that remains to be considered is-: (i) whether the petition can be transferred? (ii) whether the conduct of the petitioner no.1 is such that the prayer for transfer can be refused? 15. 14. In the aforesaid backdrop, now the only issue that remains to be considered is-: (i) whether the petition can be transferred? (ii) whether the conduct of the petitioner no.1 is such that the prayer for transfer can be refused? 15. Taking up the second issue first, from the perusal of the supplementary counter-affidavit filed by the respondent, it would indicate that the respondent had initially preferred a petition for habeas corpus bearing No.1377 of 2016 which came to be dismissed by the High Court by means of order dated 10.08.2016. In the said order itself, it has been noticed that the petitioner no.1 herein was pursuing her Ph.D and was working as a faculty-member in an institute and drawing salary and taking care of her minor child who was studying in a school at Prayagraj. It is noticing the aforesaid factors that the Court decided not to intervene at the aforesaid stage. 16. The record further indicates that in the petition preferred by the respondent for guardianship-pending before the family court at Lucknow an order was passed by the family court at Lucknow dated 27.09.2018. The same was assailed in First Appeal No.123 of 2018 by the present petitioner no.1 wherein the High Court substituted the order passed by the family court and as a consequence the respondent herein was permitted to meet the minor child on two Saturdays in a month i.e. fist and third Saturday between 3 to 5 P.M. in the family court at Prayagraj. 17. It was also provided that the said order of visitation right has been passed considering that the matter is already sub-judice before the family-court at Lucknow but as the child is residing at Prayagraj thus as agreed by the parties. It was permitted that the respondent shall meet the minor child in the family court premises at Prayagraj. A direction was also given to the Principal Judge, Family Court at Prayagraj to permit the respondent herein to meet his son as provided in the order itself. This order passed by the High Court dated 04.04.2019 also gave the present petitioner a liberty to make an appropriate application before the family court Lucknow for payment of tuition fee for the child. 18. This order passed by the High Court dated 04.04.2019 also gave the present petitioner a liberty to make an appropriate application before the family court Lucknow for payment of tuition fee for the child. 18. The record further indicates that another appeal bearing No.151 of 2018 was filed by the present respondent assailing the order dated 18.09.2018 passed by the fast track court at Lucknow in Case No.1012 of 2017 whereby the court below had allowed an application of the petitioners herein setting aside an ex parte order dated 31.10.2017. Even while dismissing the Appeal No.151 of 2018 after noticing the submissions of the respondent that the petitioner no.1 was not permitting the respondent herein to meet his son every first and third Saturday of month as provided in the order passed by the High Court dated 04.04.2019, the High Court reiterated the visitation rights to the respondent in terms of the earlier order dated 04.04.2019. Further a direction was issued to the court concerned to decide the matter within a period of six months. 19. This Court finds that in the pleadings much allegations have been levelled by the petitioner no.1 against the respondent and the respondent against the petitioner no.1. The fact whether the petitioner no.1 is permitting the respondent to meet the petitioner no.2 is not an issue before this Court. In so far as the allegations and blame is concerned that is to be tested in the appropriate proceedings which are pending before the court concerned. However, the fact remains and not disputed that this Court while entertaining the habeas corpus petition which finally came to be dismissed as well as the two appeals, one filed by the petitioner no.1 and the other by the respondent both noticed that the petitioner no.2 the minor child is studying and residing at Prayagraj. 20. In the proceedings under Section 25 of the Guardian and Wards Act, 1890 and now that the ward has already attained the age of 14, it would also be important for the court concerned to take his view and he would also be required to be present before the court as per direction given by the Court concerned at the appropriate time if it deems fit. It is after taking note of the aforesaid fact and that the minor child has been residing with the petitioner no.1 for over years during the bitter litigation and there is nothing on record to indicate that there has been any thaw in the relations between the petitioner and the respondent despite they have obtained a decree of divorce nor there is any thing to indicate that the respondent has taken care and performed his obligation towards the maintenance of his son as a result the petitioner no.1 has been involved in bringing up the child and taking care of all his needs including the financial implications of education. 21. In this view of the matter as discussed herein above, also noticing the fact that the distance between Prayagraj and Lucknow is about 200 and odd kilometers and the manner in which the proceedings are going on between the parties and various allegations, counter allegations and applications including an application under Section 340 Cr.P.C. has been moved. Thus protecting the child which is of paramount consideration and insulating him from harassment of frequent travel, remaining without his mother for time at an end during the period she may here to travel from Prayagraj to Lucknow to attend proceedings at Lucknow and without there being a caretaker available with the petitioner no.1 to take good care of the petitioner no.2 in her absence and needless to say it shall also disturb his studies and these all consideration persuades this Court to transfer the proceedings of Case No.67 of 2017 (Alok Saxena Vs. Priyanka Spring & another) pending before the Additional Principal Judge, Family Court No.6 at Lucknow to the appropriate Court of Principal Judge, Family Court at Prayagraj. 22. The Additional Principal Judge, Family Court, Court No.6 at Lucknow shall forthwith transmit the records of Case No.67 of 2017 (Alok Saxena Vs. Priyanka Spring & another) to the appropriate Court of Principal Judge, Family Court at Prayagraj who upon receipt of the records and the copy of this order shall proceed with the matter after affording full opportunity of hearing to the parties but without granting any unnecessary adjournments. In case if the court concerned finds any party misusing the liberty and seeking adjournment, it shall have full liberty to impose appropriate costs. 23. In case if the court concerned finds any party misusing the liberty and seeking adjournment, it shall have full liberty to impose appropriate costs. 23. This Court is pained to note that despite two expedite orders directing early conclusion of the proceedings yet the matter remained pending, accordingly this Court further provides that an endeavour would be made by the court concerned to complete the proceedings preferably within a period of eight months from the date of receipt of the record and the order passed by this Court in a time bound fashion and if it finds the respective parties not cooperating, the Court shall proceed and pass appropriate orders in accordance with law. 24. In light of the above, the petition is allowed. However, there shall be no order as to costs.