Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 794 (ALL)

Shruti Verma v. Ankit Srivastava

2022-05-18

JASPREET SINGH

body2022
JUDGMENT : Heard Nilaya Gupta, learned counsel for the petitioner. Shri Anil Kumar Srivastava, learned counsel for the respondent was available before the Court prior to lunch, when the hearing had commenced and while rising for lunch, the Court had specifically informed Shri Srivatava that the matter shall continue after lunch, however, after lunch recess, none on behalf of the respondent appeared nor any junior counsel is available to make any request nor any engagement slip has been given. Accordingly, the Court has continued to hear the learned counsel for the petitioner on merits of the petition. By means of the instant application, preferred under Section 24 CPC, the petitioner seeks transfer of Original Suit No.338/2018 (Ankit Srivastava v. Shruti Verma), under Section 13 of the Hindu Marriage Act, pending before the Additional Principal Judge, Room No.6, Family Court, Lucknow to the appropriate Court in District Varanasi. It is submitted that the petitioner and the respondent were married on 27.01.2014, however, despite ample gifts having been given at the time of wedding, yet there were certain issues which were escalated by the respondent which led to matrimonial discord between the parties and the petitioner was turned out from her matrimonial home and the petitioner started residing with her mother at Varanasi since 02.08.2014. It has further been submitted that the petitioner had instituted a petition under Section 9 of the Hindu Marriage Act before the Principal Judge, Family Court, Lucknow and also a petition under Section 12 of the Domestic Violence Act before the Court at Varanasi. The petitioner also preferred a petition under Section 24 of the Hindu Marriage Act. During pendency of the aforesaid proceedings, the matter was referred to the Mediation Cell and in order to give the marriage another chance, the petitioner agreed to start residing with the respondent. A compromise was entered between the parties on 03.09.2015, however, since the compromise did not work and the behaviour of the respondent did not improve, consequently, just after three days of returning, the petitioner again left the respondent and since 02.11.2015, the petitioner is residing at Varanasi. A compromise was entered between the parties on 03.09.2015, however, since the compromise did not work and the behaviour of the respondent did not improve, consequently, just after three days of returning, the petitioner again left the respondent and since 02.11.2015, the petitioner is residing at Varanasi. Subsequently, the petitioner also got an FIR lodged at Varanasi and in the meantime on an application for interim maintenance in the proceedings initiated by the petitioner under Section 12 of the Domestic Violence Act, an interim order dated 20.04.2019 was passed and in terms whereof the petitioner was granted an interim maintenance of Rs.10,000/-per month. The respondent assailed the said order of maintenance in an appeal which came to be allowed on 05.04.2022. It is further submitted that even the application preferred by the petitioner under Section 24 of the Hindu Marriage Act was dismissed by means of the order dated 05.05.2022. Earlier, a petition preferred by the petitioner seeking maintenance under Section 125 Cr.P.C., came to be dismissed on 16.11.2017. It is in the aforesaid backdrop, it is urged that the petitioner has not been provided any maintenance rather the proceedings are being contested by the respondent. He has not performed any of his obligations of maintaining the petitioner (his wife). In the aforesaid backdrop, the respondent instituted a petition under Section 13 of the Hindu Marriage Act bearing Original Suit No.338/2018 (Earlier, suit was registered as Case No.764/2016). It is this suit preferred under Section 13 of the Hindu Marriage Act, which is sought to be transferred by the petitioner and taking his arguments forward, learned counsel for the petitioner has primarily raised two grounds:- (i) the first contention is that the proceedings before the Principal Judge, Family Court at Lucknow is not maintainable inasmuch as Section 19 of the Hindu Marriage Act confers jurisdiction on the Courts to entertain a petition. As per the petitioner, the respondent is a resident of Ghaziabad and in any view of the matter, there was no occasion for the suit to have been preferred and entertained by the Courts at Lucknow which was proceeding without jurisdiction. As per the petitioner, the respondent is a resident of Ghaziabad and in any view of the matter, there was no occasion for the suit to have been preferred and entertained by the Courts at Lucknow which was proceeding without jurisdiction. (ii) the second contention of the learned counsel for the petitioner is that since the proceedings under the Domestic Violence Act are pending before the appropriate Court in District Varanasi so also the proceedings arising out of the FIR which was lodged by the petitioner at Varanasi, accordingly, it is appropriate that the suit for dissolution of marriage may also be transferred to Varanasi. 10. The further contention of the learned counsel for the petitioner is that in any case the respondent is working and stationed at Ghaziabad, whether the proceedings are pending at Lucknow or Varanasi in either case the respondent is required to travel, but insofar as the petitioner is concerned, she would suffer great hardship in case if she would has to travel from Varanasi to Lucknow especially when she does not have ample family support system, nor any male member in her family to escort her to contest the proceedings at Lucknow which in any case is at a distance of more than 300 kilometres. 11. In the aforesaid circumstances, it is submitted that the petition under Section 13 of the Hindu Marriage Act be transferred from Lucknow to Varanasi. 12. The record indicates that the parties have exchanged voluminous pleadings wherein a large number of allegations and counter allegations have been leveled against each others as well as supporting documents in respect of proceedings and contention which needless to say has nothing to do with the instant proceedings for transfer rather relates to the matter which is already seized by the court below and is to be tested in trial where the proceedings are pending. 13. Though the learned counsel for the respondent did not appear to argue the matter, but nevertheless taking note of the counter affidavit wherein primarily the ground taken by the respondent is that he is resident of Lucknow and, therefore, the proceedings at Lucknow are maintainable. 13. Though the learned counsel for the respondent did not appear to argue the matter, but nevertheless taking note of the counter affidavit wherein primarily the ground taken by the respondent is that he is resident of Lucknow and, therefore, the proceedings at Lucknow are maintainable. It has also been stated that the petitioner is having her own independent income and being an independent lady, she has no difficulty in travelling and for the said reason it cannot be permitted that the suit be transferred from one district to another merely on the asking of the petitioner. 14. Having considered by the submissions of the learned counsel for the petitioner and from a perusal of the material on record, this Court finds that insofar as the first contention of the learned counsel for the petitioner is concerned that the Court at Lucknow did not have any jurisdiction in terms of Section 19 is perhaps misplaced treating it as a ground for seeking transfer. 15. It is always open for the petitioner to raise the aforesaid contention before the Court concerned in terms of the provisions contained in CPC, but nevertheless this ground simplicitor cannot be a ground of transfer under Section 24 CPC especially where it cannot be said that the Court at Lucknow is a Court inherently lacking jurisdiction. 16. The issue of territorial jurisdiction needless to say is a mixed question of law and facts and this Court in exercise of powers under Section 24 CPC is not required to entertain or enter into these questions which can always be raised before the Court concerned, hence, the aforesaid contention of the petitioner fails. 17. So far as the second contention of the petitioner is concerned regarding the pendency of the proceedings at Varanasi initiated by the petitioner as well as the fact that the respondent is a resident of Ghaziabad. 18. Having perused the material on record without giving a definitive finding as to whether the respondent is a permanent resident of Ghaziabad, suffice it to state that the documents on record, prima-facie, indicates that the respondent is gainfully employed in the district Ghaziabad. There are certain assessment as well as documents on record to indicate that respondent is so gainfully employed in the aforesaid district. 19. There are certain assessment as well as documents on record to indicate that respondent is so gainfully employed in the aforesaid district. 19. Be that as it may, looking into the facts of the matter as well as the fact that the petitioner is residing at Varanasi, which is not in dispute. Also there is no dispute with the fact that the petitioner has instituted the proceedings under Section 12 of the Domestic Violence Act so also has lodged an FIR and in pursuance whereof the proceedings are pending before the appropriate Court in District Varanasi. 20. Now the only contention, which is disputed by the petitioner is the residence of the respondent whether it is at Lucknow or at Ghaziabad, but the fact remains that the respondent is gainfully employed at Ghaziabad. In the aforesaid facts and circumstances where the respondent either way has to travel to contest the proceedings from Ghaziabad to Lucknow to pursue his case and would also be required to appear before the Court at Varanasi where the petitioner has instituted proceedings. Thus, looking into the facts of the matter also the dictum of the Apex Court in the case Leena Mukherjee v. Rabi Shankar Mukherjee, (2002) 10 SCC 480 , Pratibha Khemka v. Sanjay Kumar Khemka, (2004) 13 SCC 686 and Neelam Kanwar v. Devinder Singh Kanwar, (2000) 1 SCC 589, it would be appropriate to note that if the matters are left as it is, both the petitioner and the respondent would have to travel. The respondent would be required to travel both to Lucknow and Varanasi to attend the respective proceedings from Ghaziabad. 21. While if the suit is transferred to Varanasi, it will be beneficial for both the parties and the petitioner will not have to travel and even the respondent will save double travel. 22. In this view of the matter, considering the facts and circumstances of the case, this Court finds that ends of justice would be met by directing the Additional Principal Judge, Room No.6, Family Court, Lucknow to transfer the Original Suit No.338/2018 (Ankit Srivastava v. Shruti Verma), under Section 13 of the Hindu Marriage Act to the Principal Judge, Family Court, Varanasi forthwith. 23. 23. The transferee Court in District Varanasi upon receipt of the record as well as copy of the order passed by this Court shall make an endeavour to consider and decide the proceedings expeditiously after affording full opportunity of hearing to the parties, but without granting any unnecessary adjournments and shall expedite the proceedings of Original Suit No.338/2018 (Ankit Srivastava v. Shruti Verma), under Section 13 of the Hindu Marriage Act to be decided finally preferably within a period of eighteen months from the date of receipt of the record and a copy of this order is placed before the Court concerned. In case, if the petitioner misuses the liberty, appropriate costs would be appended and she too shall file her written statement without wasting much time. 24. With the aforesaid, the petition is allowed. In the facts and circumstances, there shall be no order as to costs.