Allahabad High Court
Smt. Poonam Gupta vs Dinesh Kumar Gupta on 5 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Case :- TRANSFER APPLICATION (CIVIL) No. - 484 of 2022 Applicant :- Smt. Poonam Gupta Opposite Party :- Dinesh Kumar Gupta Counsel for Applicant :- Mr. Mohan Lal, Advocate Counsel for Opposite Party :- Mr. Mohd. Abrar Khan, AdvocateHon'ble J.J. Munir,J. Parties have exchanged affidavits. 2. By consent of parties, heard forthwith. 3. Heard Mr. Mohan Lal, learned Counsel for the applicant and Mr. Mohd. Abrar Khan, learned Counsel for the opposite party. 4. This transfer application has been filed, seeking transfer of Case No. 62 of 2019, Dinesh Kumar vs. Poonam Gupta, under Section 13 of the Hindu Marriage Act, 1955, from the Court of the Principal Judge, Family Court, Kaushambi to the Family Court at Jaunpur. 5. It is argued by the learned Counsel for the applicant that one case inter partes is pending at Jaunpur, details whereof are mentioned in Paragraph No. 6 of the affidavit and, therefore, if the present proceedings are moved there, it would be convenient to both parties as they can request a single date there. It is submitted that the distance between Jaunpur and Kaushambi is about 170 kilometers and given the fact that the applicant has no independent source of income, it is not possible for her to bear the travel expenses and others involved in undertaking the journey from Jaunpur to Kaushambi and that if she is forced to attend at Kaushambi on each date fixed, her defence would be seriously compromised. Apart from that, there is no one in the family to escort her on each date fixed at Kaushambi. The applicant has also indicated that she stays all alone with her old parents, whereas the opposite party is associated with antisocial elements. She has indicated a threat perception to her in case she is forced to attend at Kaushambi. It is also urged that convenience of the wife about the venue in a matrimonial cause has to be accorded priority. 6. A counter affidavit has been filed indicating that the case under Section 125 Cr.P.C. shown to be pending inter partes has already been decided and the opposite party has paid maintenance in February and March, 2021 in cash and thereafter through his salary account till date. It is averred in Paragraph No. 10 of the counter affidavit that the applicant is a graduate, a working woman and capable of maintaining herself and her son. It is next averred in Paragraph No. 11 that the applicant stays with her father and mother, besides her two brothers also. It is asserted that so far as the sole opposite party is concerned, he is a government servant, posted at District Kaushambi and a law abiding person, whereas the applicant?s brothers and uncle Subhash Gupta are antisocial elements, who can commit any crime, imperiling the opposite party?s life, in case he is forced to attend at Jaunpur. 7. Upon hearing the learned Counsel for parties, this Court finds that it is true that the case indicated in Paragraph No. 6 of the affidavit filed in support of the transfer application, earlier pending inter partes, has been decided, a fact which the learned Counsel for the applicant has not denied at the hearing. He, however, says that the maintenance order has not been fully complied with in the sense that arrears of maintenance in the terms awarded, that is to say, with effect from the date of the institution of the application, have not been paid. There does not appear to be much of a ground for the applicant on account of pendency of solitary case, pleaded in the support of the transfer application. 8. The submission of the applicant, that she is unemployed and without an independent source of income, has not been dispelled by the opposite party. The fact, that the opposite party is paying maintenance in the sum of Rs. 7000/- per month in compliance with the maintenance order under Section 125 Cr.P.C., cannot be regarded as sufficient means for the applicant to sustain herself out of the said sum of money and also defend outstation proceedings. 9. The other contention on this score, that the applicant is a graduate and gainfully employed, cannot be accepted for the reason that it is not stated in Paragraph No. 10 of the counter affidavit, in what kind of gainful employment, the applicant is engaged. This Court asked the learned Counsel for the opposite party as to what employment, the applicant is engaged in. In answer, the learned Counsel for the opposite party stated at Bar that the applicant is engaged as a worker in some Beauty Parlor. 10. Engagement in Beauty Parlors or teaching tuitions are unverifiable sources of employment, about which there can be little evidence. The contention of the opposite party on this score, therefore, cannot be accepted. This Court is, therefore, of opinion that in case the transfer plea is not accepted and the applicant forced to defend at Kaushambi, given her financial constraints, her defence would be compromised. 11. The last submission to oppose the wife?s plea for transfer is that her brothers, Manoj Gupta and Vishal Gupta and uncle Subhash Gupta, are antisocial elements, effective at Jaunpur. There is absolutely no material annexed with the counter affidavit in support of the said assertion. Any relevant material, like an FIR or an order of conviction or any other history of crime, duly evidenced, could have supported this submission. But, in the total absence of any material, the submission is stated to be rejected. 12. The Court inquired of the learned Counsel for the opposite party as to the kind of government employment the applicant is in at District Kaushambi. He says that he is posted as a Senior Assistant in the office of the Chief Judicial Magistrate, Kaushambi. The aforesaid facts show that the opposite party is a man possessed of resources to defend outstation proceedings. Even otherwise, the opposite party appears to be an able-bodied man and would not find it much difficult to defend proceedings at Jaunpur. 13. Quite apart, the 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 Vs. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374 and N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199. 14. In the result, this Court finds it to be a fit case for transfer in the terms prayed. This application is allowed. 15. The proceedings of Case No. 62 of 2019, Dinesh Kumar vs. Poonam Gupta, under Section 13 of the Hindu Marriage Act, 1955, under Section 13 of the Hindu Marriage Act, are withdrawn from the file of the Principal Judge, Family Court, Kaushambi and transferred to the Principal Judge, Family Court at Jaunpur, who may proceed to try the case himself or assign to it to an Additional Principal Judge, available on the Court, as he deems fit. In either case, trial shall be expedited and endeavour shall be made to conclude the same within six months of the date of receipt of a copy of this order. The Principal Judge, Family Court, Kaushambi shall cause the records of the case to be transmitted forthwith to the Principal Judge, Family Court at Jaunpur. 16. Let a copy of this order be communicated to the Principal Judge, Family Court, Kaushambi and the Principal Judge, Family Court, Jaunpur by the Registrar (Compliance) within 48 hours. Order Date :- 5.12.2022/Anoop