Allahabad High Court
Smt. Dipti Saxena vs Ashish Srivastav And Another on 14 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2539
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 65 Case :- TRANSFER APPLICATION (CIVIL) No. - 567 of 2019 Applicant :- Smt. Dipti Saxena Opposite Party :- Ashish Srivastav And Another Counsel for Applicant :- Qazi Vakil Ahmad Counsel for Opposite Party :- Sharad Chand Rai Hon'ble Saumitra Dayal Singh,J.
1. The present application has been filed by the estranged wife of respondent no.1 seeking transfer of divorce proceeding Case No.339 of 2019 (CNR No.UPGB020005942019), Ashish Srivastava Vs. Smt. Dipti Saxena, pending in the Court of the Principal Judge, Family Court, Gautam Budh Nagar, to the competent court at Shahjahanpur.
2. Briefly, it has been submitted that marriage between the parties was solemnized on 20.02.2017, at Shahjahanpur. Thereafter, for sometime the parties resided at Gautam Budh Nagar. Upon differences having arisen, the applicant was turned out of her matrimonial home, in December, 2018. Since then she has been residing with her father at Shahjahanpur. She further claims to have instituted three proceedings - first, under Section 125 Cr.P.C. on 02.04.2019 registered as Case No.145 of 2019 pending before the Principal Judge, Family Court, Shahjahanpur; second, a complaint case under Section 12 of the Domestic Violence Act, 2005 filed on 17.04.2019, registered as Case No.904 of 2019 pending before the C.J.M., Shahjahanpur and third F.I.R. lodged on 08.10.2019, registered as Case Crime No.535 of 2019, alleging commission of offences under Sections 498-A, 323, 506 I.P.C. and Section 3/4 D.P. Act, at Shahjahanpur.
3. In the above context, it has been submitted that no maintenance allowance is being paid to her by the respondent husband at present and, she is wholly dependent on her aged father both for her day to day expenses and also to litigate with the respondent, her husband. As such she is not in a position to afford her travel, stay and litigation expenses, if she has to travel to Gautam Budh Nagar on every date in the divorce case proceeding. As to the participation in the proceeding, it has been submitted that the respondent husband is not participating in the three proceedings instituted by her at Shahjahanpur.
4. On her part, despite no financial support offered by the respondent, the applicant had appeared in the divorce proceeding at Gautam Budh Nagar, on 18.07.2019 whereupon, she prayed for time to file her written statement. That time was granted. However, on the next date 23.09.2019 itself, the matter was directed to proceed ex parte against her though the applicant could not appear on that date, for unforeseen circumstances. It is thus submitted that the applicant is unable to contest the divorce case proceeding at Gautam Budh Nagar, on equal terms, with the respondent her husband, as she is staying with her father at Shahjahanpur - a place more than 300 kilometers from Gautam Budh Nagar.
5. The transfer application has been vehemently opposed. Learned counsel for the respondent-husband would submit, earlier both the applicant and the respondent were working at Gautam Budh Nagar but at present the respondent has no stable employment or income as may allow him to pay any amount towards maintenance to the applicant. At the same time, he does not claim and, in any case, has not been able to establish that the applicant has any known source of income. It has yet been further submitted that the applicant herself was a working lady. She has chosen to walkout of the marriage and therefore, no prejudice is being caused to her - to participate in the divorce proceedings instituted at Gautam Budh Nagar, which proceeding is otherwise wholly competent.
6. Learned counsel for the respondent has relied upon the order passed by this Court in Transfer Application (Civil) No.557 of 2014 (Nirmala @ Krishnakanta Vs. Premkant). Also, reliance has been placed on another decision in Transfer Application (Civil) No.206 of 2016 (Hema Rastogi Vs. Vishal Rastogi) decided on 24.10.2016 and two decisions of the Supreme Court in Transfer Petition (Crl.) Nos.254-255 of 2017 (Harita Sunil Parab Vs. State of NCT of Delhi and others) decided on 28.03.2018 and in case of Durgesh Sharma Vs. Jayshree in Civil Appeal No.5857 of 2008 decided on 26.09.2008.
7. Having heard learned counsel for the parties and having perused the record, in the case of Nirmala @ Krishnakanta (supra), the transfer had been sought from Hathras to Aligarh. The two places were found situated less than 30 kilometers apart. In that context, the Court while considering different decisions on the point reached a conclusion that distance alone may not be a sufficient ground to seek transfer. However, in that case there was no plea of any other proceeding pending between the parties at Aligarh. Here the distance is above 300 kilometers. It is also a fact that there are three other cases instituted against the respondent all arising from the matrimonial discord. Those are pending at Shahjahanpur. Moreover, the applicant has also pleaded that she has no means to sustain herself and contest the proceeding at Gautam Budh Nagar. At present, there is no material brought by the respondent to disbelieve the same. Therefore, the decision cited is wholly distinguishable on facts.
8. In Hema Rastogi (supra), the transfer had been sought, from Ghaziabad to Lucknow. In that case the divorce proceeding had been earlier instituted at Ghaziabad. However subsequently, as claimed by the wife, she started living at Lucknow whereas her husband started living at Jharkhand. In such circumstances, the wife sought transfer of the proceedings from Ghaziabad to Lucknow. That transfer had been sought after 14 years of the proceeding being instituted. The applicant wife had participated in the same all that while and also she had been awarded maintenance allowance under Section 24 of the Hindu Marriage Act, 1955. In those facts, the Court declined to transfer the proceeding at that delayed stage. Clearly the facts of this case are also distinguishable from those admitted in the present case.
9. In case of Harita Sunil Parab (supra), the transfer sought for was not of a civil proceeding but of a criminal proceeding, from Mumbai to New Delhi, in a case involving offence under Section 304 I.P.C. and other offences. Considerations for transfer of criminal proceedings may ever remain different from those applicable to purely civil proceedings such as the present proceedings. Consideration of fair investigation may itself compel the Court, to not transfer a criminal proceeding to any Court other than Court having jurisdiction over the territories where the offence may have been committed and therefore, where witnesses may normally reside. In that case, besides one witness, all others resided outside Mumbai and in any case the applicant herself was found to be a person of means. Here no plea exists of witnesses being from Gautam Budh Nagar. In any the applicant is not a person of means, rather she is wholly dependent on her aged father for her day to day needs and minimum expenses needed to secure her life, and dignity. The decision relied upon by learned counsel for the respondent husband is wholly distinguishable on facts and law.
10. In the case of Durgesh Sharma (supra), the respondent wife was staying at Nasik in Maharashtra, whereas the husband was staying at Ujjain at Madhya Pradesh. He instituted proceedings for divorce at Ujjain, whereas, certain maintenance case was instituted by the wife at Nasik alongwith other proceeding for restitution of conjugal rights. In such facts, transfer was sought by the wife of the proceedings at Ujjain, to Nasik. Clearly that was a case of transfer of proceeding from a place falling within the territorial jurisdiction of one High Court to a place falling in the territorial jurisdiction of another. However, upon the application filed by the estranged wife before the Madhya Pradesh High Court, the said High Court passed the order to transfer the case from Ujjain to Nasik. That order became the subject matter of challenge before the Supreme Court. The Supreme Court held that the High Court had no jurisdiction to transfer the case to a place falling outside its jurisdiction, that power being clearly vested in the Supreme Court alone. The said ratio does not have any application of the facts of the present case inasmuch as here both the proceedings are before different courts inside the State of Uttar Pradesh.
11. Thus, it remains undisputed between the parties that there are three cases instituted by the applicant at Shahjahanpur, whereas, the divorce proceeding alone is pending at Gautam Budh Nagar. Then it is also undisputed that no amount of maintenance is being paid by the respondent to the applicant wife and her claim as to that is/are still pending. Also, against her claim of being dependent on her father, she is not shown to be gainfully employed as may allow this Court to believe that the applicant has sufficient or reasonable means of sustenance. The respondent husband has also not agreed to the suggestion of the Court to pay any amount to his estranged wife towards maintenance, even at this stage.
12. In the peculiar circumstances of matrimonial disputes, it has to be understood that such disputes are not pure civil disputes between two individuals but rather a trouble in the relationship formed by both. Even today, often, the husband - being the bread earner, runs the family and bears all expenses of the family or household from his earnings. Hence, it also appeals to reason that no injustice may be done to him, if such a husband is required to fund reasonable legal expenses of his estranged wife. So long as the marriage survives, such expenses are expenses arising in the marriage and may be looked after and borne by the husband at least, to reasonable extent. However, at present that is not an enforceable right available to the applicant.
13. Yet, the Supreme Court in its recent decision in the case of Rajnesh Vs. Neha and another, 2020 SCC online SC 903 being Criminal Appeal No.730 of 2020 decided on 04.11.2020 took note of the entire gamut of law pertaining to maintenance to be awarded in such cases and has also taken note of the discrepancies and doubts existing thereof. Thereafter, firm directions have been issued as may ensure prompt payment of a just amount of maintenance, in deserving cases. The decision, clearly underlines the urgent need to provide necessary dignified means of sustenance to an estranged wife who may be in a midst of a rough marital relationship. Unless her urgent minimum financial needs are addressed in a timely manner, she may be at the risk of being exposed to vagrancy and destitution. Even if that unfortunate circumstance may not visit her, at the same time, her loss of dignity to lesser or greater extent is largely a foregone conclusion. In her unfortunate circumstance, she becomes wholly dependent on her parents or brother or sister or such other near relative or kin as may offer her such assistance. In our peculiar societal circumstances ridden with tendencies, features, patterns, practices and prejudices arising from the patriarchal order of the days gone by, unless the estranged wife is either gainfully employed or has her own source of income, in the event of her marriage going bad she is left with no one to fend for her other than her parents and other close blood relatives, largely, without any legally enforceable duties on such relatives. In such circumstances, it is wholly unfair to expect that such a lady would have the means as may allow her free access to justice to defend a proceeding for divorce such as the one that has been visited on the applicant here.
14. Access to justice had been held to be a basic human right and in certain situations even a fundamental right as held by the Supreme Court in Tamilnad Mercantile Bank Shareholders Welfare Association and 2 others Vs. S.C. Sekar (2009) 2 SCC 784. Any doubt that may have survived as to whether access to justice is a fundamental right, stands unequivocally resolved by a Constitution Bench of the Supreme Court in Anita Kushwaha Vs. Pushap Sudan; (2016) 8 SCC 509 wherein it was firmly declared that access to justice is and has been recognized as a part and parcel of right to life in India and in all civilized societies around the globe. It was held to be included in the right to life guaranteed under Article 21 of the Constitution of India. Further, it was declared that it may as well be a facet of the right guaranteed under Article 14 of the Constitution of India that guarantees equality before law and equal protection of laws. The Supreme Court further observed - the citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14, both in relation to equality before law as well as equal protection of laws. Then, it was further observed that absence of adjudicatory mechanism or its inadequacy would also result in negation of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.
15. Elaborating further and, killing the doubt in that regard, the Constitution Bench has further elaborated that the litigants access to the adjudicatory process must be affordable. Thus, not only must there exist a path to justice that may be seen to be available to the aggrieved citizen but he must be enabled enough, financially, to be able to tread that path. If the cost of treading such path is found unaffordable - by the aggrieved citizen, his fundamental right to life and equality before law would stand violated as in the words of the Supreme Court, it would be a mere 'illusion'.
16. Then, interestingly though the issue of transfer of a proceeding had arisen before the aforesaid Constitution Bench in a completely different factual and legal context, yet, the observation made by the Supreme Court even in that different context, remains relevant. In paragraphs 41 and 42 of the report, the Supreme Court observed as under:-
"41. .......In other words, even if the provision empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given fact situation.
42........Exercise of the power vested in the Court under that Article could take the form of a direction for transfer of a case from one court to the other to meet situations where the statutory provisions do not provide for such transfers. Any such exercise would be legitimate, as it would prevent the violation of the fundamental right of the citizens guaranteed under Article 21 of the Constitution."
17. Thus, in the context of matrimonial disputes, besides other grounds, for transfer of proceedings at the behest of an estranged wife, the following considerations may also weigh in the mind of this Court to allow such a transfer -
(i) whether she is gainfully employed or has any independent source of dignified life as may allow her means to bear reasonable expenses to contest such a case;
(ii) whether she is living with her parents/brother/s/ sister/s or other blood relatives or independently;
(iii) whether she has claimed maintenance from the husband;
(iv) whether she is being paid any amount towards maintenance by her husband, under any law or otherwise;
(v) considering the facts as may be found on the aforesaid issues, it may be examined by the Court whether she has access to justice or that fundamental right has been violated;
(vi) if her fundamental right of access to justice is found violated, the Court may remain pre-disposed to transfer the proceedings to her place of temporary residence;
(vii) in such a case, the initial burden to establish violation of fundamental right of access to justice would remain on her (the wife). However, that initial burden may be discharged by making appropriate pleadings. Then, the onus to prove that her fundamental right of access to justice has not been violated would shift on the husband, who may bring on record such positive pleadings and material as may establish either that his wife is gainfully employed or has independent source of income or is receiving maintenance allowance or any other fact as may establish the fundamental right of his wife of access to justice, has not been violated.
18. Though transfer of a case may not follow as an automatic/default consequence to the above enquiry made by the Court, yet, it would be for the husband who may be opposed to the transfer to establish why such transfer may not be made, in that case.
19. Coming to the facts of the present case, the Court finds that the applicant who is a estranged wife, is seeking transfer of the divorce case proceedings from Gautam Budh Nagar to Shahjahanpur. She has pleaded that she is wholly dependent on her father for her day-to-day survival. She has further established that she has claimed maintenance from the respondent-husband but no amount is being paid to her. No material has been brought on record to doubt that status of the applicant.
20. Thus, the onus placed on the applicant-estranged wife to establish that she had no means to avail her fundamental right of access to justice has been discharged. The burden shifted on the respondent-husband to cite any material or circumstance to establish otherwise. In absence of any material or circumstance being brought on record by the respondent-husband as may lead this Court to believe that the applicant has any means to sustain herself and to avail her fundamental right of access to justice by incurring extra expenses to travel to Gautam Budh Nagar on each date of the divorce case proceedings; to make arrangements for her dignified stay at Gautam Budh Nagar and; to seek paid legal advice in that regard, the Court has no hesitation to hold that the fundamental right guaranteed to the applicant to have affordable access to justice stands violated.
21. Once the aforesaid conclusion has been reached, it now remains to be considered what relief may be granted to the applicant as may balance the scales of justice between the parties. The respondent-husband has not agreed to provide for any amount towards maintenance to the applicant, in the instant proceedings and no such award may ever be made by this Court, in the present proceedings filed under Section 24 of the C.P.C.
22. Accordingly, besides the convenience cited by the applicant to pursue the divorce case proceedings at Shahjahanpur, it is found that the same has become necessary to protect and preserve the applicant's fundamental right of affordable access to justice. If the applicant in her penurious circumstances is forced to participate in the proceedings at Gautam Budh Nagar, it would only be at the mercy of the funds that may be provided by her father and other blood relatives who, in the first place, do not owe a legal liability to do so though they may provide some funds to the applicant of their own freewill. In that situation too her fundamental right of affordable access to justice would stand violated.
23. Thus, it appears that the solitary case pending at Gautam Budh Nagar in the divorce proceeding be transferred to the competent court at Shahjahanpur so that all four cases arising from the matrimonial discord between the parties may be dealt with at Shahjahanpur, such that the Court/s concerned may fix appropriate dates to reduce inconvenience to the parties, to the extent possible and also ensure expeditious and fair resolution of the disputes between the parties.
24. In view of the aforesaid observations, the transfer application is allowed. Let the proceeding in Divorce Case No.339 of 2019 (Ashish Srivastava Vs. Smt. Dipti Saxena) pending before the Principal Judge, Family Court, Gautam Budh Nagar be transferred from Principal Judge, Family Court, Gautam Budh Nagar to the court of Principal Judge, Family Court, at Shahjahanpur for it's disposal in accordance with law.
Order Date :- 14.12.2020 Atul