Allahabad High Court
Smt. Sita Devi vs Jitendra Kumar Kharwar on 2 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- TRANSFER APPLICATION (CIVIL) No. - 552 of 2021 Applicant :- Smt. Sita Devi Opposite Party :- Jitendra Kumar Kharwar Counsel for Applicant :- Sunil Kumar Singh,Raj Kumar Singh Counsel for Opposite Party :- Amit Kumar Singh,Rajeev Upadhyay Hon'ble J.J. Munir,J.
This is a Transfer Application made on behalf of the wife seeking transfer of Case No. 651 of 2017, Jitendra Kumar Kharwar Vs. Smt. Sita Devi under Section 13 of the Hindu Marriage Act, from the Principal Judge, Family Court, Varanasi to the Family Court, at Ballia.
Heard Mr. Raj Kumar Singh, learned Counsel for the applicant and Mr. Amit Kumar Singh, learned Counsel learned Counsel appearing on behalf of the respondent.
It is stated by the learned Counsel for the applicant that there are three cases pending inter partes before the Court at Ballia, details whereof are mentioned in paragraph Nos. 9, 10 and 11 of the affidavit filed in support of the application and, therefore, if the present proceedings are moved there, it would be convenient to both parties as they can request a single date. It is submitted that the applicant stays with her parents at Ballia and has no source of income of her own. She is dependent upon her parents for sustenance. In addition, it is stated in paragraph No.18 of the affidavit that the opposite party is a powerful man and extended threat to do her to death. With the aforesaid facts, it is urged that it is not possible for the applicant to defend outstation proceedings travelling all the way from Ballia to Varanasi. It is also urged that convenience of the wife about the venue in a matrimonial cause has to be accorded priority.
A counter affidavit has been filed on behalf of the opposite party. A perusal of the said affidavit shows that for a fact the averments in paragraph Nos. 9, 10 and 11 of the affidavit have not been denied and all that is said is that these are matters of record. Thus, the fact that three cases inter partes are pending at Ballia is admitted to the respondents. The assertion in paragraph Nos. 18 and 19 are denied and it stated that the opposite party is a peace living person. However, the fact has not been denied that the applicant stays with her parents at Ballia.
A rejoinder affidavit has also been filed on behalf of the applicant reiterating the stand taken in the application.
Upon hearing learned Counsel for the parties, this Court finds that it is not disputed that three cases inter partes are pending at Ballia. It is not the opposite party's case that he has applied for a transfer of the three cases from Ballia to Varanasi or elsewhere. Since the opposite party has not applied for transfer of his three cases pending between parties at Ballia, there is no gainsaying that the applicant would have to appear in those cases and defend himself at Ballia. In the circumstances, if the present proceedings are moved from Varanasi to Ballia, it would promote ease of litigation for both parties, where they can request a single date in all matters. Proceedings venued at one station would save time, resources and energy for both parties and also expedite the outcome. That apart, it is not seriously disputed that the applicant does not seems to have the necessary financial and physical means to defend outstation proceedings, travelling a distance of about 149 Kilometres between the two stations.
Quite apart, convenience of the wife about the venue is favoured in matrimonial causes and nothing has been shown in this case to make it different from the rule. In this regard, reference may be made to the decision of the Supreme Court in Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani AIR 2009 SC 1374, where it has been held that in matrimonial causes, convenience of the wife is a good ground to consider while granting a transfer. In this connection, reference may be made further to the recent decision of the Supreme Court in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC Online SC 1199.
In the result, this transfer application succeeds and is allowed. The proceedings of Case No. 651 of 2017, Jitendra Kumar Kharwar Vs. Smt. Sita Devi under Section 13 of the Hindu Marriage Act, are withdrawn from the Principal Judge, Family Court, Varanasi and made over to the Principal Judge, Family Court, Ballia who shall proceed to try the petition himself or assign it to an Additional Principal Judge available on the Court, as he deems fit. In either case, trial shall be expedited and endeavour made to conclude the same within six months of the date of receipt of a copy of this order.
Let this order be communicated to the Principal Judge, Family Court, Ballia and the Principal Judge, Family Court, Varanasi by the Registrar (Compliance).
Order Date :- 2.1.2023 NSC