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2023 DIGILAW 558 (CHH)

Faleshwari Sahu D/o Moti Ram Sahu v. Devanand Sahu S/o Ghanshyam Sahu

2023-10-16

SACHIN SINGH RAJPUT

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ORDER : 1. This petition under Section 24 of the Code of Civil Procedure, 1908 (for short ‘CPC’) has been filed by the petitioner/wife praying for the following relief - “that this Hon’ble Court may kindly be pleased to transfer the case bearing Civil (Matrimonial) Suit No.16-A/2022 pending before the Court of learned Additional District Judge, Gariyaband, District – Gariyaband to the Court of learned Family Court, Mahasamund, District – Mahasamund (CG), in the interest of justice.” 2. Learned counsel for the petitioner submitted that the respondent/husband has filed an application under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act of 1955’) seeking decree of divorce before the learned Additional District Judge, Gariyaband, District – Gariyaband, CG. The said application is registered as Civil (Matrimonial) Suit No.16-A/2022. He further submitted that the house of the father of the petitioner is at Palari, District – Mahasamund, CG and at present, the petitioner is residing with him and she is pursuing her B.Ed. Degree from Mahasamund, CG. He further submitted that the petitioner has filed an application under Section 125 of CrPC, 1973 (for short ‘CrPC’) against the respondent before the Family Court, Mahasamund and the learned Family Court had also passed final order of maintenance against respondent/husband. It is submitted that the respondent is not complying with the order passed by the Family Court and not giving any regular maintenance to the petitioner/wife. For recovery of maintenance amount, the petitioner/wife has filed execution proceeding which is at present pending before the learned Family Court at Mahasamund. Further submission of learned counsel for the petitioner/wife is that she has filed an another case under the Domestic Violence Act, 2005 against the respondent before the competent Court at Mahasamund, C.G which is also presently pending consideration. The distance between the residence of the petitioner/wife and Gariyaband is about 100 kms and there is no direct bus service to reach there and to attend the case at Gariyaband regularly. It would take about 4-5 hours to reach Gariyaband and the whole day would be spent in attending the case at Gariyaband and coming back to her place of residence. 3. It would take about 4-5 hours to reach Gariyaband and the whole day would be spent in attending the case at Gariyaband and coming back to her place of residence. 3. It is next submitted that the parents of the petitioner/wife are old aged persons and they cannot accompany the petitioner to attend the case at Gariyaband and it would cause great inconvenience to the petitioner/wife being a lady to regularly attend the case filed by the respondent/husband at Gariyaband. Hence, he prayed that the application may be allowed and other relief so claimed may be granted. He placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Sumita Singh v. Kumar Sanjay and anr., 2001 (10) SCC 41 and order of this Court passed in TPC No.36/2021 (Smt. Neelam Diwan v. Prashant Diwan). 4. Mohd. Afroz Athar, learned counsel for the respondent vehemently opposed the submission made by learned counsel for the petitioner/wife. He submits that the respondent/husband is a Teacher in a Government School. He submitted that if the case is transferred to the Court at Mahasamund, it would cause great inconvenience to him as well as to his students. He further submitted that since August, 2017, Rs.6,000/- per month is being deducted from the salary of the respondent/husband and the same is being credited in the account of the petitioner/wife. Even then, learned JMFC, Mahasamund has also granted Rs.2,000/- per month as interim maintenance to the petitioner/wife. Though this has been challenged before the Hon’ble High Court and is pending consideration but the respondent/husband is still paying the same to the petitioner. However, he submitted that the distance between Mahasamund and Gariyaband is about 80 kms and as such, there is no direct bus service from Mahasamund to Gariyaband and it takes 4 – 5 hrs to return to Mahasamund. However, he submitted that same analogy is also applicable in the case of respondent/husband also. He further submitted that the petitioner/wife is not required to appear regularly before the Court at Gariyaband and she may appear through her counsel or she may also appear through video conferencing. The petitioner/wife being an educated girl and quite capable of understanding her well being, there would be no difficulty for her to appear before the Court at Gariyaband. 5. The petitioner/wife being an educated girl and quite capable of understanding her well being, there would be no difficulty for her to appear before the Court at Gariyaband. 5. He further goes to submit that the petitioner/wife has lodged an FIR against the respondent/husband, for which he is facing trial under Section 498-A of IPC in the competent Court at Gariyaband. Hence, he prayed that the petition may be dismissed. To buttress his submission, he placed reliance upon the judgment of Hon’ble the Supreme Court in the case of Delma Lubna Coelho v. Edmond Clint Fernandis reported in (2023) 4 SCR 473 and judgment of the Supreme Court in the case of Krishna Veni Nagam v. Harish Nagam reported in (2017) 4 SCC 150 partly overruled by Supreme Court judgment in the case of Santhini v. Vijaya Venketesh reported in (2018) 1 SCC 1 . 6. I have heard learned counsel for the parties, considered their rival submissions and also perused the records. 7. From perusal of the records, following facts are emerging - The application under Section 13 of the Act of 1955 has been filed by the respondent/husband which is at present pending before the learned Additional District Judge, Gariyaband. A case under Section 12 of the Act of 2005 was filed by the petitioner/wife and from perusal of the order sheets appended to the records, it appears that at present, the case is pending consideration before the jurisdictional Magistrate, 1st Class, Mahasamund at the stage of evidence of the respondent/husband. It also appears that the respondent has appeared in that case and he has also been represented by his counsel. The petitioner/wife has also entered her appearance in the proceedings under Section 13 of the Act of 1955 and has also been represented by her counsel and as such, there is no dispute to the fact that the distance between Mahasamund and Gariyaband is more than 80 kms and takes about 4 to 5 hrs to reach there. 8. Hon’ble Supreme Court in the case of Sumita Singh (supra) has held that convenience of the wife must to looked at. 8. Hon’ble Supreme Court in the case of Sumita Singh (supra) has held that convenience of the wife must to looked at. In the case of Smt. Neelam Diwan (supra), this Court relied upon judgment of the Hon’ble Supreme Court in the case of Rajani Kishore Pardeshi v. Kishor Babula Pardeshi reported in 2005 (12) SCC 23 and also in the case of Sumita Singh (supra), allowed the transfer petition of the wife. Hon’ble Supreme Court in the case of Delma Lubna Coelho (supra) rejected the prayer for transfer made by the petitioner/wife and in paragraph 18 has observed as under - “18. Number of Transfer Petitions are filed in matrimonial cases, primarily by the wives seeking transfer of the matrimonial proceedings initiated by the husband. This Court normally has been accepting the prayer made while showing leniency towards ladies. In Anindita Das v. Srijit Das (2006) 9 SCC 197 , this Court observed that may be this leniency was being misused by women. Hence, each and every case has to be considered on its own merits.” 9. Hon’ble Supreme Court in the case of Krishna Veni Nagam (supra) in paragraph 14 has observed as below - “14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.” 10. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.” 10. Hon’ble Supreme Court in case of Santhini (supra) partly overruling the case of Krishna Veni Nagam (supra) held as under - “58. In view of the aforesaid analysis, we sum up our conclusion as follows :- (i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera. (ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer. (iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct. (iv) In a transfer petition, video conferencing cannot be directed. (v) Our directions shall apply prospectively. (vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent.” 11. Hon’ble Supreme Court in the case of NCV Aishwarya v. A.S. Saravana Karthik Sha reported in 2022 LiveLaw (SC) 627 had 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. 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 orother 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. 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 difcult 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.” 12. Learned counsel for the respondent/husband argued that since criminal case is pending against him in which the petitioner/wife has appeared but the counsel for the petitioner/wife submits that the evidence of the petitioner has already been recorded and she is not required to attend the case at Gariyaband anymore. Learned counsel for the respondent/husband argued that since criminal case is pending against him in which the petitioner/wife has appeared but the counsel for the petitioner/wife submits that the evidence of the petitioner has already been recorded and she is not required to attend the case at Gariyaband anymore. True it is that there may be misuse of leniency shown by the Courts towards wife in the case of transfer of matrimonial disputes but on the appreciation of facts of this case, it is apparent that the distance is about more than 80 kms, no direct bus service is available from Mahasamund to Gariyaband and it takes about 4-5 hours to reach Gariyaband and from the records, it is emerging that the respondent/husband is attending the case of domestic violence at Mahasamund. Of course, inconvenience would be caused to the respondent/husband but his inconvenience would be on the lesser footing as compared to the petitioner/wife. 13. Therefore, it would be appropriate that the case pending at Gariyaband is transferred to the Family Court, Mahasamund. At the same time, looking to the difficulty of the respondent, this Court is inclined to make observation with regard to his appearance before the Family Court, Mahasamund. 14. Learned Family Court, Mahasamund may permit the respondent/respondent to take assistance of amicus curiae of his choice to represent him if he so desires. It is also observed that learned Family Court, Mahasamund shall fix the same date on which, the other proceeding is fixed for hearing for convenience of the parties as far as possible. In any event, if respondent/husband could not appear, his appearance may be marked through his counsel/amicus curiae. It is also expected that learned Family Court would make all endeavors to decide the case expeditiously subject to cooperation by the parties. With this observation, the petition is allowed. 15. Records of the case Civil (Matrimonial) Suit No.16-A/2022 be transferred to Family Court, Mahasamund (CG) expeditiously. Parties shall appear before the learned Family Court, Mahasamund (CG) on 01/12/2023. 16. No cost.