Madhya Pradesh High Court
Smt. Aastha Shrivastava vs Mohit Shrivastava on 24 February, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
-1- MCC No.2565/2019
HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
MCC NO.2565/2019
(Smt.Aastha Shrivastav
vs.
Mohit Shrivastava)
24.02.2020: (INDORE):
Shri Manish Yadav, learned counsel for the applicant.
Shri Chetan Jain, learned counsel for the respondent.
Heard.
ORDER
Applicant/wife has filed the present petition under section 24 of the CPC seeking transfer of matrimonial case No.1356/2019 from Family Court, Indore to Family Court, Bhopal.
2. Applicant and respondent are husband and wife by virtue of their marriage held on 21.11.2017 at Bhopal under the Hindu customs and rituals. After the marriage she started living with the respondent at Indore. She lived along with him at Indore up to 24.02.2018 and thereafter went to Bhopal and started living along with her parents. She filed a complaint under sections 12, 18, 19, 20, 21 & 22 of the Domestic Violence Act before the JMFC, Bhopal and also filed an application under section 125 of the Cr.P.C seeking maintenance from the respondent. Vide order dated 16.09.2017 learned Family Court, Bhopal has awarded maintenance to the applicant but she has not filed the -2- MCC No.2565/2019 complete copy of the said order. She has also not filed the complete copy of the complaint filed under sections 12, 18, 19, 20, 21 & 22 of the Domestic Violence Act, therefore, it is very difficult to gather the complete facts out of it.
3. Respondent filed a petition under section 13 of the Hindu Marriage Act seeking dissolution of the marriage before the Family Court, Indore. Vide order dated 09.09.2019 the Family Court has issued a summons to the present applicant for her appearance before the Court on 03.10.2019. The applicant instead of appearing before the Family Court, Indore filed the present petition on 04.10.2019 seeking transfer of the case from Family Court, Indore to Family Court, Bhopal. Vide order dated 11.11.2019 this Court has stayed the further proceedings while issuing notice to the respondent. This case came up for hearing on 11.11.2019 and even today the present status of both the proceedings pending at Bhopal has not been disclosed.
4. Shri Manish Yadav, learned counsel for the applicant submits that the father of the applicant is a pensioner and he cannot travel along with his daughter on each and every date of hearing from Bhopal to Indore which has a distance of 200 kms. The respondent is already attending the proceeding before the Court at Bhopal, therefore, the present case be also transferred to Bhopal.
5. Shri Jain, learned counsel for the respondent submits that the present petition is pre-mature. The applicant ought to have appeared before the Family Court, Indore and -3- MCC No.2565/2019 participated in the conciliation proceedings, however, she approached this Court immediately after receipt of summons issued by the Family Court, Indore. Before travelling from Bhopal to Indore she cannot anticipate the personal difficulties. In various cases co-ordinate bench of this Court has dismissed similar type of petitions on the ground that at the most the wife can claim travelling expenses along with the maintenance amount. In each and every case only the convenience of the wife is not liable to be seen. In support of his contention he has placed reliance over the judgments of the Apex Court as well as this Court in the case Anindita Das vs. Srijit Das (2006) 9 SCC 197, Deepa Kuttapan vs. Anil Rajan 2007 (2) MPLJ 377, Punam vs. Putsh 2001 (I) MPWN SN 191 & Rekha (smt.) vs. Virendra 2009 (II MPWN 43.
6. It is correct that immediately after receipt of the summons the applicant has approached this Court by way of this petition anticipating the problems which may come in her way in future. The distance between Bhopal and Indore is only 200 kms. and are well connected by road as well as rail. The applicant/wife is not required to attend the Court on each and every date of hearing. She can be represented by her counsel and can also apply for exemption from personal appearance. Apart from that, the proceedings under section 125 Cr.P.C and the Domestic Violence Act are temporary in nature and are liable to be concluded expeditiously and after conclusion of those proceedings pending at Bhopal the -4- MCC No.2565/2019 respondent/husband is not required to appear the Court at Bhopal, therefore, on that ground also the proceedings under section 13 of the Hindu Marriage Act cannot be transferred.
7. In the case of Anita Das vs. Sirjit Das reported in 2006 (9) SCC 197, the Apex Court has held that the Court is required to consider each petition seeking transfer of the matrimonial case on its own merit and in each and every case the leniency cannot be shown to the ladies. Para 3, 4 and 5 are reproduced below :
3. Even otherwise, it must be seen that at one stage this court was showing leniency to laides. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this court. On an average at lease 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this court is being misused by the women.
4. This court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met.
5. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out."
8. In the case of Krishna Veni Nagam vs. Harish Nagam- (2017) 4 SCC 150, the Apex Court has also considered the problem faced by the husband if proceedings -5- MCC No.2565/2019 are transferred on account of genuine difficulties faced by the wife. The Apex Court instead of transferring the case, issued certain safeguards, which can be followed like availability of conveyance facility, video conferencing facility, Legal Aid Service, deposit of cost for travelling, lodging and boarding, communication by E-mail or phone number etc. Paras 17 and 18 are relevant which read as under:
17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.
18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:
(i) Availability of video conferencing facility.
(ii) Availability of legal aid service.
(iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.
(iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
9. This Court in the matter of Smt. Manjulata Singh Chouhan Vs. Vishal Singh Chouhan vide order dated 21/7/2016 passed in MCC No.137/2016 wherein also the prayer for transferring the case from Family Court, Indore to -6- MCC No.2565/2019 Family Court, Bhopal while rejecting the plea has held as under:-
"Hence, considering the relative convenience and inconvenience of the parties, I am of the opinion that no case for transferring the pending proceedings is made out. The Supreme Court in the case of of Anindita Das vs. Srijit Das [(2006) 9 SCC 197] has held that leniency to ladies shown by the court in such transfer matters often misused and taken advantage of by woman therefore, the Court is not required to consider each petition on its own merit.
This Court in the matters of Smt. Pratibha Mishra vs. Mukesh Mishra, vide order dated 28.10.2010 passed in MCC No.510/2009, Anamika Pandey vs. Shrihar Pandey vide order dated 27.08.2015 passed in MCC No.1449/2014, Deepa Kuttapan vs. Anil Rajan vide order dated 12.01.2007 passed in MCC No.1536/2006 and Smt. Aditi Chouhan vs. Deepak Chouhan vide order dated 14.03.2016 passed in MCC No.83/2016 has dismissed the similar transfer applications.
Hence, in the aforesaid circumstances, the MCC is dismissed, however with the direction to the respondent to pay the traveling and lodging boarding expenses of the petitioner and her companion as and when the petitioner is required to appear before the competent court at Indore. The said amount will be fixed by the competent court where the matter is pending. The petitioner will also be at liberty to file an appropriate application for exemption from personal appearance before the Court at Indore and will be required to appear only as and when such personal appearance is necessary."
10. In these circumstances, the prayer made by the applicant for transferring the case from Indore to Bhopal cannot be accepted and is accordingly rejected. However, it will be open to the applicant to seek necessary order from the Family Court in respect of travelling, lodging and boarding expenses as also exemption for personal appearance on the basis of above observations.
-7- MCC No.2565/2019MCC is accordingly dismissed.
(VIVEK RUSIA) JUDGE Digitally signed by Hari Kumar Nair Date: 2020.02.27 12:13:46 +05'30' hk/