Madhya Pradesh High Court
Smita Jain vs Anil Kumar Jain on 30 April, 2012
Equivalent citations: AIR 2012 (NOC) 335 (M.P.)
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
M.C.C. No.198/2012
Smita Jain
Vs.
Anil Kumar Jain
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Shri Akhilesh Jain, learned Counsel for the petitioner.
Shri Satyendra Jain, learned Counsel for the respondent.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(30/04/2012) This M.C.C. is filed under Section 21-A of the Hindu Marriage Act read with Section 24 of the Code of Civil Procedure for transfer of Case No.565/2011 of the Court of II Additional Principal Judge, Family Court, Bhopal and M.J.C. No.67/2011 of the Court of Principal Judge, Family Court, Bhopal to the competent Court at Vidisha.
2. It is contended by the petitioner that the respondent has filed the aforesaid two petitions, one under Section 13(1)(ia) of the Hindu Marriage Act and the other one under Sections 7 & 8 of the Guardians & Wards Act before the Family Courts. Both the cases are registered in the Family Court, Bhopal. It is contended that the said applications have been filed to counter the claim made by the petitioner on an application filed under Section 125 of the Code of Criminal Procedure for grant of maintenance before the Chief Judicial Magistrate, Vidisha. It is contended that on account of ill-treatment on the part of the respondent, the petitioner was required to live separately along with an 2 infant child born out of the wedlock. Since she was not having any source of income, she has made an application for grant of maintenance before the Chief Judicial Magistrate, Vidisha. On the frivolous allegations, the applications have been filed by the respondent for grant of divorce and custody of infant child under the Guardians & Wards Act. It will be difficult for the petitioner to attend the said proceedings, therefore, the same may be transferred to the competent Court at Vidisha. It is also contended that in fact as per the law laid-down by the Apex Court, the application under Sections 7 & 8 of the Guardians & Wards Act would lie only at a place where the ward is residing and not at the place where the father is residing or where the marriage has been solemnized. Therefore, it is contended that the Family Court at Bhopal will have no jurisdiction to try the said application. On these counts, it is contended that aforesaid cases are liable to be transferred.
3. Per contra it is submitted by learned Counsel for the respondent that this application itself is not maintainable in view of sub-clause (3) of Section 24 of the Code of Civil Procedure and, therefore, liable to be dismissed on this count. It is contended that District Vidisha falls under the jurisdiction of Gwalior Bench of this Court and subordinate to the Bench at Gwalior for the purposes of relief claimed under Section 24 of the Code of Civil Procedure. It is contended that in view of this, the application itself is liable to be dismissed. It is further contended that as per the provisions of Section 21-A of the Hindu Marriage Act, 1955, if an application is made at Vidisha under Section 125 of the Code of Criminal Procedure for grant of maintenance, the same is liable to be transferred to Bhopal and the cases at Bhopal are not liable to be transferred to Vidisha. It is contended that the application under Section 125 of the Code of Criminal Procedure pending at Vidisha was 3 presented later and the petition for divorce was filed much before by the respondent at Bhopal. Therefore, it is contended that the present M.C.C. is not maintainable. In detailed reply submitted by the respondent, it is contended that no case is made out to order any transfer as the petitioner herself was responsible for all such illegal acts. In fact the petitioner was not living properly with the respondent/husband and ever since after the birth of his elder son, she was trying to go to Vidisha to live separately. After great difficulty, she came back to live with the respondent and after the birth of second son, again the petitioner left the matrimonial house and went to Vidisha. This being the situation, the respondent was left with no option but to file an application for grant of divorce before the Court at Bhopal, which Court had the jurisdiction to entertain such petition. To pressurize the respondent, the petitioner has filed an application under Section 125 of the Code of Criminal Procedure at Vidisha and this is how the claim is now made for transfer of the cases. Since the younger son is living with the petitioner, the respondent has made an application for giving his custody to the respondent under the Guardians & Wards Act and such an application has rightly been entertained by the Family Court, Bhopal. It is contended that in view of this, the transfer of cases as sought by the petitioner is not justified. There is no inconvenience to the petitioner to come and attend the cases at Bhopal and as such the application is liable to be dismissed.
4. Heard learned Counsel for the parties at length and examined the record.
5. Undisputedly the petitioner has filed an application under Section 125 of the Code of Criminal Procedure, which is not covered under the provisions of the Hindu Marriage 4 Act, 1955. The power to transfer petition in certain cases as is prescribed in Section 21-A of the Hindu Marriage Act is relating to the petitions made under the said Act either in the same Court or different Courts within the same district or different courts in different districts. It nowhere says that any petition even made under Section 125 of the Code of Criminal Procedure would also be transferred in the manner indicated in the said provision. Thus, learned Counsel for the respondent is patently wrong in saying that because of filing of petition under Section 125 of the Code of Criminal Procedure at Vidisha later than the petition filed under Section 13 of the Hindu Marriage Act, 1955, by the respondent, the petition filed by the petitioner at Vidisha is liable to be transferred to Bhopal. The total submissions made by the learned Counsel for the respondent in this respect are misconceived and cannot be accepted at all.
6. The other objection which learned Counsel for the respondent has raised is with respect to the jurisdiction of the Court. This Court has the control over the jurisdiction of Courts at Bhopal as per the notification issued. What the petitioner is asking for transfer of the cases from Bhopal to Vidisha. This Court is competent to issue an order of transfer of one case of any subordinate Court within its jurisdiction to the Court of competent jurisdiction in other district, which may not be within the jurisdiction of this Court but in the same State. A High Court has the jurisdiction over the entire State and, therefore, it cannot be said that the M.C.C. as filed by the petitioner is not maintainable before this Court. The aforesaid two preliminary objections raised by the respondent with respect to the maintainability of the M.C.C. are totally misconceived. Therefore, the same are rejected outrightly.
57. The further consideration is whether the application could be made by the respondent for grant of guardianship of an infant minor child, the second son, who is admittedly living with the petitioner at Vidisha. The law is well settled in this respect as is held by the Apex Court in case of Pooja Bahadur vs. Uday Bahadur, AIR 1999 SC 1741. The Apex Court has categorically held that the custody proceedings of minor child would lie at the place where the ward is living. Admittedly the minor is living with the petitioner at Vidisha and if the respondent was willing to get the custody of the said child, he was required to apply to Vidisha Court for appointment of a guardian and delivery of custody of said minor to him. Such an application filed by the respondent before the Family Court, Bhopal is not maintainable in view of such law laid-down by the Apex Court.
8. Lastly it is to be seen as to whether any inconvenience would be caused to the petitioner in contesting the matter or not. She has already resorted to the application for grant of maintenance before the Chief Judicial Magistrate, Vidisha. In the said proceedings appearance of the respondent at Vidisha is necessary. If he is required to go to Vidisha to attend one case, he can still make arrangement for his appearance in other cases. The application filed by the respondent before the Family Court for grant of guardianship of minor child is bound to be transferred to Vidisha as per the law laid-down by the Apex Court. If the divorce application filed by the respondent is also transferred to Vidisha, no prejudice would cause to the respondent as he otherwise also would require to go to Vidisha to attend the said cases, one launched by him at Family Court, Bhopal, which is required to be transferred to Vidisha and other one launched by the petitioner against him for grant of maintenance. In comparison to this 6 petitioner would require to go to Bhopal for attending the divorce case only and she being a lady, would require an attendant also, which will be an expensive burden on her.
9. Keeping in view the aforesaid, M.C.C. is allowed. Case No.565/2011 pending in the Court of II Additional Principal Judge, Family Court, Bhopal and M.J.C. No.67/2011 pending in the Court of Principal Judge, Family Court, Bhopal are transferred to the Court of District Judge, Vidisha. The District Judge, Vidisha will try the said applications simultaneously or will assign the same to one Judge of competent jurisdiction within his jurisdiction at Vidisha for trial. It is also directed that the dates of the cases aforesaid be also fixed in accordance to the date fixed in the case filed by the petitioner for grant of maintenance pending in the Court of Chief Judicial Magistrate, Vidisha, so that the respondent may not be troubled to travel to Vidisha again and again on different dates for attending the cases. The said applications be tried expeditiously. Since the parties are represented before this Court, they will appear before the District Judge, Vidisha on 25th June, 2012. The District Judge, Vidisha will do the needful as directed herein above in presence of the parties. No notice of transfer of these cases from Bhopal to Vidisha would be necessary to the parties concerned.
10. The M.C.C. stands allowed and disposed of finally. There shall be no order as to cost.
(K.K. Trivedi) Judge Skc