Anita Shrivastava vs Ashish Saxena

U.C. Maheshwari, J.

This application is directed by the applicant u/s 24 of the CPC for transferring Original Suit No. 7-A/04 from Family Court, Bhopal to Family Court, Indore for its further trial.

It is not in dispute that the applicant is wedded wife of non-applicant who filed a suit u/s 13 of Hindu Marriage Act for divorce, which is pending against the applicant in the aforesaid Court at Bhopal.

As per averments of petition the applicant is residing at Indore with her mother who is suffering from Cancer since last about 3 years and her health is deteriorating day by day. The applicant is Lecturer (English) in the Government Girls Higher Secondary School, Rajendra Nagar, Indore and not in a position to come Bhopal for attending the Court on every date of hearing. Earlier a petition of the same nature was filed but the same was withdrawn due to some technical objection of the Registry of this Court with liberty to file this application. The same is supported by her affidavit.

In reply of non-applicant the averments made by the applicant has been denied in a very elaborate manner by mentioning various circumstances and averments on merits of the case for showing the conduct of the applicant. Reply is also supported by an affidavit of non-applicant.

Learned Counsel for the applicant has submitted that looking to the inconvenience and difficulties of the applicant as she is a lecturer in the educational institution at Indore and also having the liability to look after her old aged mother who is suffering from Cancer and her health is deteriorating day by day, it would not be convenient to the applicant to attend the Court on every date of hearing at Bhopal, if she would be insisted to attend the Court at Bhopal, then it will create grave inconvenience to her in aforesaid circumstances. Counsel for the applicant also cited a case of the Apex Court decided in the matter of Sumita Singh Vs. Kumar Sanjay and Another, .

Learned Counsel for the non-applicant by referring various proceedings of the trial Court has submitted that on various occasions the applicant was appeared in the Family Court Bhopal to contest the same matter. He also advanced various averments regarding merits of the case by placing his reliance on a reported case in the matter of Smt. Renu Jain (Pahadia) v. Smt. Preeti Agrawal and Anr. reported in 2004 (2) M.P.H.T. 104 and Veena v. Vinay Kumar (P.H.) reported in 7992 1 HLR 380. The latter case was cited from a digest only.

Having heard Learned Counsel of the parties, I am of the considered view that the merits of the case cannot be considered in this petition because the merits are yet to be decided by the trial Court wherever the case would be proceeded further at present court has to consider the circumstances in which section 24 of CPC can be involved or not for transferring the said pending case from Bhopal to Indore for its further trial and adjudication. In this regard Court has to see convenience of the parties on priority basis. Such question of convenience has been answered by the Apex Court in the matter of Sumita Singh Vs. Kumar Sanjay and Another, in which it is held as under :

This is a transfer petition by the wife. She seeks the transfer of matrimonial proceedings filed by the husband against her in Ara, Bhojpur to Delhi. It is her case that she is now living and working in Delhi and that she would be unable to travel up and down from Delhi to Ara, a distance of about 1100 Kilometers from Delhi, to defend the matrimonial proceedings. She also states that she has no one with whom she can stay in Ara because her parents are residents of Gurgaon.

Learned Counsel for the husband states that the wife is an educated woman who is doing very well and can, therefore, travel to Ara while the husband is unemployed.

It is the husband''s suit against the wife. It is the wife''s convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute.

According, Matrimonial Case No. 30 of 2000 pending before the Vlth Additional District and Sessions Judge, Ara Bhojpur, Bihar shall stand transferred to the District Judge, Delhi, who shall hear it himself or assign it for hearing to an appropriate forum.

In view of the aforesaid dictum of the Apex Court the facts and circumstances of the case at hand appears to be identical upto some extent because impugned case has also been initiated by the husband and convenience of applicant is to be considered in view of the alleged facts regarding transfer as her mother with whom she resides at Indore is suffering from Cancer as said above and except the applicant no any other person is in the family to look after her mother. Beside this she is also employed in Job under such circumstances she cannot come alone for attending the court at Bhopal. Thus, the aforesaid dictum is directly applicable to the case at hand.

Although this Court has no dispute regarding principles laid down in the cases cited by the non-applicant but in view of the aforesaid dictum of the Apex Court these are not helping to the non-applicant in any manner.

Resultantly, this petition is allowed and C.S. No. 43-A/03 (Ashish Saxena v. Anita Shrivastava) pending in the Family Court, Bhopal is hereby transferred for further trial to the Family Court Indore with immediate effect for its further trial and adjudication in accordance with law. The aforesaid both the court be intimated in this regard and applicant is also directed to submit a copy of this order before the court in which the case is pending.

Petition is allowed. No order as to cost.