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2023 DIGILAW 286 (CHH)

Priya Kaushik W/o Shri Umesh Kaushik v. Umesh Kaushik S/o Shri Chotelal Kaushik

2023-07-07

SACHIN SINGH RAJPUT

body2023
JUDGMENT : Present application under Section 24 of the Code of Civil Procedure (for short “CPC”) has been fled by the petitioner-wife seeking relief of transfer of application under Section 13 of the Hindu Marriage Act, 1955 (for short “Act of 1955”) preferred by the respondent-husband before the Family Court Bilaspur, to Family Court, Durg. 2. Counsel for the petitioner submits that marriage of the petitioner with the respondent was solemnized on 01.09.2019 as per the Hindu customs and rituals at Arya Samaj Mandir, Raipur, CG. Thereafter, their relations turned sour and for that now the petitioner is living separately at Bhilai. He submits that respondent-husband fled an application under Section 13 of the Act of 1955 for dissolution of marriage before the Family Court, Bilaspur and summons of that application have been received by the petitioner-wife. He further submits that presently the petitioner is residing at Bhilai since 04.02.2021 along with her old and infirm parents, from where Bilaspur is about 150 Kms. away. He submits that out of the wedlock of the petitioner and the respondent one child was born but unfortunately he died during the pendency of this application, that she has no financial source of her own, that there is none to accompany her to Bilaspur and thus she finds it extremely difficult and inconvenient to appear on each and every date in Family Court, Bilaspur and therefore looking to the hardships likely to be faced by her the case may be transferred to Family Court, Durg. In support of his submission, counsel for the petitioner places reliance on the decision of the Supreme Court in the matter of Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi reported in (2005) 12 SCC 237 . 3. Despite service of notice, nobody appeared for the respondent-husband nor any reply has been fled on his behalf. 4. Heard counsel for the petitioner-wife and perused the documents on record. 5. It is an admitted position that the petitioner is residing at Bhilai which is about 150 KM away from Bilaspur where the respondent-husband has fled an application under Section 13 of the Act of 1955. The grounds raised by the petitioner in this petition have not been controverted by the respondent-husband and thus there is no reason for this Court to disbelieve the averments made in the petition. The grounds raised by the petitioner in this petition have not been controverted by the respondent-husband and thus there is no reason for this Court to disbelieve the averments made in the petition. Even otherwise, Hon’ble the Supreme Court in the like matters in NCV Aishwarya v. A.S. Saravana Karthik Sha reported in 2022 LiveLaw (SC) 627, has held as under:- 8. It is not disputed that the appellant is the resident of Chennai and that the appellant’s husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case fled by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also fled a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai. 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 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. 10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. 11. 11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case fled by 3 the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, fled by the appellant herein.” 6. In an earlier decision referred to above also it has been held by the Supreme Court that in matrimonial cases the convenience of the wife is to be preferred over the convenience of the husband. 7. Thus considering the above factual and legal narration this Court is of the considered view that it would be in the interest of justice if the case No. 457A/2022 (Umesh Kaushik v. Smt. Priya Kaushik) pending in the Family Court, Bilaspur is transferred to Family Court, Durg. It is so ordered. Parties are now directed to appear before Family Court, Durg on 09.08.2023. In case respondent-husband fails to appear at Family Court, Durg on that day, learned Judge presiding over the said Court may issue notice to him for a date to be fixed by it. Let the records of the said case be sent to Family Court Durg from Family Court, Bilaspur, as early as possible. 8. Petition is thus allowed.