Madhya Pradesh High Court
Smt. Sujata Rathore vs Yogesh Rathore on 6 August, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1 MCC-2027-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 6 th OF AUGUST, 2024
MISC. CIVIL CASE No. 2027 of 2023
SMT. SUJATA RATHORE
Versus
YOGESH RATHORE
Appearance:
Shri Rohan Singh - Advocate for petitioner.
None for respondent, though served.
ORDER
With the consent of learned counsel for the petitioner, heard finally at motion stage.
2. This is a petition filed under Section 24 of CPC seeking transfer of RCSHM No.1040/2023, pending before the Court of IInd Additional Principal Judge, Family Court, Indore to the Court of Principal Judge Family Court, Jabalpur (M.P.).
3. Leaned counsel for the petitioner submits that petitioner filed an application under Section 125 of Cr.PC in Jabalpur Court which is pending since 2023. Thereafter, respondent filed an application under Section 13 Hindu Marriage Act before Family Court, Indore. Distance of Indore from Jabalpur is 550 Km. Thus, total distance, including return journey, comes to 1100 Km. Petitioner has only father and there is no male member in the family. Further, relying upon NCV Aishwarya Vs. A.S. Saravan Kartik, Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 2 MCC-2027-2023 2022 SCC OnLine SC 1199 , Rajni Kishore Pardeshi Vs. Kishore Babulal Pardeshi, reported in (2005) 12 SCC 237 and Smt.Jyoti Singh Vs.Nigesh Singh (MCC No.2059 of 2022 decided on 21.11.2023), it is urged that while, deciding application filed under Section 24 of CPC, convenience of wife is to be seen. On above grounds, it is urged that application filed by the petitioner be allowed and case pending before Family Court, Indore be transferred to Jabalpur.
4. I have heard learned counsel for the petitioner and perused the record of the case.
Principles Governing transfer of matrimonial case :-
5. So far as transfer of case, pertaining to matrimonial dispute is concerned, Hon'ble Apex Court in the case of Krishna Veni Nigam Vs. Harish Nigam, reported in 2017 (4) SCC 150 , in para 13 to 20 has discussed the matter and issued guideline which are as under :
"13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd., reported in AIR 2003 SC 1177 this Court observed:
"19. In Spiliada Maritime, 1987 AC 460 case, the House of Lords laid down the following principle:
"The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 3 MCC-2027-2023 which the case could be tried more suitably for the interest of all the parties and for the ends of justice......."
The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried."
Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM4 MCC-2027-2023 Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed.
14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 5 MCC-2027-2023 appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.
15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.
16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 6 MCC-2027-2023 instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.
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 Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 7 MCC-2027-2023 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.
19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017, ..........................
20. ....................A copy of this order be sent to all the High Courts for appropriate action."
6. Hon'ble Apex Court in Anjali Brahmawar Chauhan Vs. Navin Chauhan, reported in 2017 SCC OnLine SC 2020, has held in para 4 as under :-
"4. We, accordingly, order that the trial at Gautambudh Nagar shall be conducted and facilitated by the Family Court, District Gautambudh Nagar, U.P. through video conferencing."
7. As per Rules, namely, " District Courts of Madhya Pradesh Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 8 MCC-2027-2023 Video Conferencing Rules, 2018" and in view of law laid down by Hon'ble Apex court in the case of State of Maharashtra Vs. Dr.Praful B. Desai, 2003 (4) SCC 601 and Sarvesh Mathur Vs. The Registrar General High Court of Punjab and Haryana, reported in 2023 LiveLaw (SC) 871 , evidence can be recorded through video-conferencing. The applicant can participate in the Court proceedings through video conferencing.
8. Further, Hon'ble Apex Court in Anindita Das Vs. Srijit Das , reported in (2006) 9 SCC 197, has held in paras 3 to 7 as under :-
"3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. 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 least 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 Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM
9 MCC-2027-2023 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.
6. Accordingly, we dismiss the transfer petition. We, however, direct that the respondent shall pay all travel and stay expenses of the petitioner and her companion for each and every occasion when she is required to attend the court at Delhi.
7. The respondent shall send in advance to the petitioner, money for a 2nd class AC train ticket for herself and a companion. The respondent shall also pay stay expenses of the petitioner and her companion in a 3-star hotel. The trial court shall ensure that the petitioner has been paid the travel expenses in advance and that the hotel expenses are paid to her on each and every occasion when she is required to attend the court Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM 10 MCC-2027-2023 at Delhi."
9. Further, Hon'ble Apex Court in Preeti Sharma Vs. Manjit Sharma , reported in (2005) 11 SCC 535 , has held in para 2 as under :-
"2. Merely because the petitioner is a lady does not mean she cannot travel to Muzaffar Nagar. At the highest she can be paid expenses for travel and stay. We, therefore, direct that the respondent shall pay to the petitioner and a companion travel and stay expenses on every occasion that the petitioner is required to go to Muzaffar Nagar. The Court at Muzaffar Nagar shall ensure that such payment is made to the petitioner on every occasion. With these directions, the transfer petitions are dismissed."
Analysis and Findings :-
10. Now facts of the case would be examined in the light of Principles of law/parameters laid down in aforesaid pronouncements.
11. Evidently, video conferencing facility is available at IInd Additional Principal Judge, Family Court, Indore and also at Principal Judge, Family Court, Jabalpur (M.P.). Further, if in the instant case, any exigency arises and physical presence of petitioner becomes necessary, then, learned trial Court can pass appropriate order for payment of reasonable expenses, having regard to the facts and circumstances of the particular case, including status and financial condition of the parties, pertaining to travel/stay etc. as held by Hon'ble Apex court in Anindita Das (supra) and Preeti Sharma (supra).
12. Further, this Court has examined submissions of learned counsel for the petitioner/grounds taken in the petition, otherwise also on merits. In this Court's considered opinion, no ground for transfer is made out.
Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM11 MCC-2027-2023
13. Hence, in view of discussion in the forgoing paras as well as law laid down by Hon'ble Apex Court in the case of NCV Aishwarya (supra) and Rajani Kishore Pardeshi (supra), does not help petitioner in any way.
14. Hence, in view of observations/directions issued by Hon'ble Apex Court in Krishna Veni Nigam (supra), Anjali Brahmawar Chauhan(supra), Anindita Das (supra) and Preeti Sharma(supra) etc., there is no need to transfer the case from IInd Additional Principal Judge, Family Court, Indore, to Principal Judge, Family Court, Jabalpur (M.P.).
15. Therefore, present petition is disposed off with a direction to concerned Court at Indore and Jabalpur (M.P.) to comply and proceed in accordance with observations/directions issued by Hon'ble Apex Court in Krishna Veni Nigam (Supra), Smt.Jyoti Singh(supra), Anindita Das (supra) and Preeti Sharma(supra) as well as decision of Coordinate Bench of this Court in Smt. Nishitakunwar Vs. DigvijaySingh passed in MCC No.1453 of 2023 dated 15.12.2023.
16. Hence, Petition filed by the applicant is disposed off accordingly.
(ACHAL KUMAR PALIWAL) JUDGE sm Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 8/9/2024 6:58:48 PM