Bombay High Court
Smt. Asha @ Deepa Ramchand Sharma vs Shri Ramchandra Laxmandas Sharma on 31 July, 1996
Equivalent citations: (1997)99BOMLR55
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. In this Misc. Civil Application made under Section 23(3) and 24 r/w. Section 151 of the Code of Civil Procedure, 1908, the petitioner Smt. Asha @ Deepa Ramchand Sharma prays that Marriage Petition No. 99 of 1990 be transferred from the Court of Second Joint Civil Judge, Senior Division, Thane to the Court of Civil Judge, senior Division at Jamnagar (State of Gujarat) for its hearing and disposal and also transfer of Misc. Application No. 150 of 1990 from the Court of IIIrd Additional District Judge, Thane to the Court of District Judge at Jamnagar for hearing and disposal of the said application.
2. The parties viz. Smt. Asha and the Respondent Shri Ramchand Sharma married sometime in the year 1981. Out of the wedlock, two sons and one daughter were born. It appears that alter sometime, the matrimonial dispute arose between the parties and the allegation of the wife is that in the year 1988, she was thrown down from the first floor of the building by the husband. The wife further alleges that the husband and his family members have been constantly harassing and illtreating her. In the month of November, 1989, the wife went to her parents' place alongwith her youngest daughter and left behind the two sons. When she came back, she was not allowed to see her two sons and was pressed for giving mutual divorce. In these circumstances, the wife made an application in the District Court, Thane seeking custody of her two sons and the said application was transferred to the Addl. District Judge, Thane, The wife also claimed interim custody of the two sons and the trial court granted interim custody to the wife and the said order was maintained by this Court. The said application for custody is still pending in the court of 3rd Addl District Judge, Thane. The grievance of the wife is that she is not in a financial position to come to attend the hearing of the said proceedings and that the proceedings in Misc. Application No. 150 of 1990 be transferred from IIIrd Addl. District Judge, Thane to the District Judge, Jamnagar. The wife further submits in the application that after the husband was served with the notice of the aforesaid proceeding, he filed divorce petition against her and that is pending in the court of Second Joint Civil Judge, Senior Division, Thane. The wife submits that the maintenance pendente lite granted to her and children at the rate of Rs. 2000/- per month and the litigation expenses of Rs. 5000/- are not sufficient to defend the divorce proceedings taken out by the husband at Thane and the pendency of the said proceedings there, is causing great inconvenience to the wife. The wife submits that she has to come all the way from Jamnagar to (Thane) Bombay to defend the divorce proceedings taken out by the husband and to pursue the application for custody of children and it is causing great harassment to her and husband is interested that wife is harassed as long as possible, In this background, the wife has prayed for transfer of the aforesaid proceedings to the courts at Jamnagar.
3. The husband has filed his affidavit-in-reply to the said application arid denied that his motto was to harass the wife. In affidavit-in-reply, the husband has stated that wife has been paid as litigation expenses Rs. 5000/- and that he has been paying interim maintenance and therefore, it should not be inconvenient for the wife to attend the proceedings at Thane court.
4. I have heard Mr. Mulchandani the learned Counsel for the applicant and Mr. Kanuga, the learned Counsel for Respondent at quite some length, and also perused the application for transfer, the affidavit-in-reply filed by the husband and the citations relied upon by the learned Counsel for the parties.
5. During the course of arguments, Mr. Mulchandanin submitted that on every date of hearing in both the proceedings pending at Thane court, the wife has to come all the way from Jamnagar alongwith three children and one of his relatives to escort her to Thane court and for the said purpose, wife has to incur about Rs. 2000/- towards travelling expenses and besides that she has to stay alongwith the children and escort for a day or two either at Thane or at Ulhasnagar and that would cost her around Rs. 500/-on each date of hearing. Mr. Mulchandani thus contends that with the meagre maintenance paid by husband, it is virtually impossible for the wife to contest the divorce proceeding effectively as well as to prosecute the application for custody.
6. In support of the wife's case for transfer, Mr. Mulchandani relied upon the decisions of the Apex Court in Anita Laxmi Narayan Singh v. Laxmi Narayan Singh II (1992) DMC 202 : 1992(3) BOM CR 454 Anita Bhansali v. Moolchand Bhansali II (1994) DMC 51 Kamna v. Prakash Chand Sohane I(1985) DMC 403 Kamlabai v. Pyarelal I(1992) DMC 43: 1991(1) BOM CJ 611 Nanda Kishori v. S.B. Shivaprakash II(1994) DMC 295 : A 1993 Kan 87: 1993 Marri LJ 210 Rekha v. Som Kumar I(1995) DMC 37 Bhakti Sharma v. Mahendra Kumar Udenia II(1994) DMC 166 and Heera Tripathi v. Nageshwar Prasad Tripathi I (1993) DMC 115.
7. Mr. Kanuga, the learned Counsel for the Respondent, on the other hand frankly submitted that his client is prepared to bear the reasonable expenses incurred by the wife in travelling as well as lodging and boarding at Thane necessary for attending the date of hearing in both the proceedings and that should take care of financial difficulties expressed by the wife in attending the hearing of the two proceedings at Thane. Mr. Kanuga also submits that so far as custody matter is concerned, it is the wife who chose the forum and has filed the application at Thane and therefore, after the financial difficulties expressed by the wile have been taken care of, no case of transfer can be said to have been made out. As regards the divorce proceedings also, Mr. Kanuga submits that since the husband is prepared to meet the necessary expenses of wife in defending the aforesaid cases, it should not be difficult for the wife to attend the date of hearing at Thane court and therefore, it could not be in the interest of justice to transfer the case to the Jamnagar court from Thane. In support of his contentions, Mr. Kanuga relied upon the decision of Madhy a Pradesh High Court in Mayura Awasthi v. Arun Chandra Awasthi (1982) I DMC 377 and Anr. decision of Madhya Pradesh High Court in Kiran Sohane v. Jai Prakash Sohane I (1985) DMC 392.
8. Section 22 of Code of Civil Procedure, 1908 provides for power to transfer the suit which may be instituted in more than one court. Admittedly, in the present case, Section 22 has no application since the proceedings have been filed by the respective parties in the courts having jurisdiction at Thane and that the said proceedings could not have been instituted in any of the courts at Jamnagar since neither the parties married at Jamnagar nor resided at Jamnagar nor any cause of action had taken place at Jamnagar. Section 23 of the Code of Civil Procedure provided for the forum where such application for transfer may be made and under Sub-section (3) of Section 23, where the proceeding is pending in a court subordinate to one High Court and the court where the proceeding is sought to be transferred is subordinate to the different High Court, an application for transfer is required to be made to the High Court within the local limits of whose jurisdiction the court in which the suit is brought is Instituted. Section 23 reads thus:-
23. To what Court application lies.
1. ...
2. ...
3. Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought, is situate.
9. The general power of transfer and withdrawal is provided in Section 24. Sub-section (5) of Section 24 provides that a suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it. Sub-section (5) of Section 24 reads thus:-
24. General power of transfer and withdrawal.
1. ...
2. ...
3. ...
4. ...
5. A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
10. A close reading of Sections 23 and 24 would make it clear that Section 23 speaks of forum where an application for transfer is to be made and Section 24 provides the exercise of power of transfer by the High Court or for that matter by the District Court. While exercising the power of transfer under Section 24, it is not necessary that the suit or proceeding must be transferred only to the court which has jurisdiction to try that suit or proceeding. Rather, as provided under Sub-section (5) of Section 24, while exercising the power of transfer under Section 24, the High Court or the District Court as the case may be, may transfer the suit or proceedings to a court which has no jurisdiction. I have, therefore, no hesitation in holding that even if the court at Jamnagar has no jurisdiction, if the circumstances so warrant, this Court may order for transfer of the aforesaid proceedings to the courts at Jamnagar. However, the question is whether in the light of the contentions raised by the learned Counsel for the parties, a case for transfer of the aforesaid proceedings to the courts at Jamnagar is made out or not. Before I come to the facts of the case, the authorities cited by the learned Counsel for parties may be referred.
11. In Anita Laxmi Narayan Singh's case (Supra) the Supreme Court held thus Having regard to the fact that the husband is a high ranking railway officer who would be entitled to travel facilities, we think in the backdrop of events that have taken place, it would be expedient in the interest of Justice to transfer the proceedings from the Family Court, Bombay, to the District Court, Ghaziabad, for disposal in accordance with law. The restored divorce proceedings will stand transferred to the District Court Ghaziabad. The Family Court, Bombay will forthwith transmit the record and proceedings, inclusive of pending interim applications including the one in which the impugned order of 20th April, 1991 came to be passed, to the District Court, Ghaziabad for disposal in accordance with law. The respondent-husband will pay the cost of present three proceedings which we quantify at Rs. 5,000/(Rupees five thousand only).
12. The M.P. High Court in Anita Bhansali's case (Supra) held thus-
Keeping in view the circumstance that Rajnandgaon is far away from Indore, where the wife resides, and the journey expenses on each trip would be considerable, I deem it to be a fit case for transfer of the proceedings to a suitable place convenient to both the parties and where there would be no apprehension of breach of peace.
Convenient place for the parties was discussed before me by the Counsel appearing. The learned Counsel for the husband, to begin with, has strongly opposed the transfer petition. In spite of his opposition, it could not be seriously disputed that the journey expenses between Indore and Rajnandgaon, even if the wife is required to attend on 3 or 4 hearing would be quite costly.
13. In Kamna's case (Supra), the Madhya Pradesh High Court observed as follows:-
In the instant case, there arc facts and circumstances to indicate that the apprehension expressed by the applicant in respect of the trial of the petition at Seoni is not wholly unjustified. Applicant has no independent income. Inspite of meagre allowances she might have been provided under Section 24 of the Hindu Marriage Act (in the absence of the record, it is not possible to ascertain if any order has been passed in that behalf), it will be a financial burden on her to visit Seoni with her witnesses every time particularly when the conduct of the non-applicant in getting the suit dismissed when the applicant's witness Dr. Smt. Ansari was being examined is kept in mind.
14. Again in KamlaBai's case (Supra), the Madhya Pradesh High Court held thus-
The learned Counsel for the applicant placed reliance on the decision in Jagatguru Shri Sankaracharya Jyotish Peethadhishwar Shri Swami Swaroopanand v. Ramji Tripathi Lal Bihari Tripathi and Ors. (1979 M.P.L.J. 305) In support of her contention that one of the factors for transfer is convenience of the parties. The husband is reported to be in railway service and being a salaried person can as and when necessary undertake journey to Bhopal, but so far as the wife is concerned, she will have to undertake the journey with her small child and one escort.
On the transfer petition, notice was issued to the opposite party, but none appeared. The application for transfer is thus not opposed. In the matrimonial cases like this where one party is poor and with no apparent source of income and help to attend the hearing at a place where the case is instituted, the Court has power to transfer the proceedings in the interest of justice. It is true that the husband who is posted at Bina may find some inconvenience in attending the proceedings at Bhopal but compared to him the inconvenience that would be caused to the wife would be greater.
15. While dealing with the transfer of matrimonial case from the Family Court, Bangalore to Court of Principal Civil Judge, Hubli, the Karnataka High Court in Nanda Kishori's case (supra) held as follows:-
In the instant case, husband is gainfully employed in Syndicate Bank, and no where in his counter there is a whisper that he is looking after the maintenance of his wife and child and that wife is in a financial sound position to make trips to Bangalore from Hubli during the period of litigation, where finality of litigation is uncertain due to unending chapters of forensic fight.
It is but natural for a party in such circumstances to make a plea to the Courts of equity to transfer the proceeding to a place where they would be in a best position to defend their case and in the instant case, wife who has sought transfer of the matrimonial proceedings from Bangalore where she has no moorings to a place wherein she is leading life of destitution with her aged parents could be characterised as either perverse, vindictive or based on no materials.
16. The Punjab and Haryana High Court in Rekha 's case (supra) in a short judgment held thus-
This is an application under Section 24 of the Code of Civil Procedure for transferring the petition filed by the respondent-husband under Section 9 of the Hindu-Marriage Act, titled Som Kumar v. Rekha, from the Court of the District Judge, Bathinda, to a Court of competent jurisdiction at Ferozepur. It has been averred that the applicant is the daughter of a fourth class employee. She is poor and dependant upon her parents. It has further been averred that she has got no independent source of income. Under somewhat similar circumstances, this Court following another decided case C.B. Shyamala v. C.S. Srikantaiah allowed transfer application in case Usha Rani v. Baldev Raj 1992(1) C.L.J. 641 Following Usha Rani's case (supra), I hereby allow the application and order the withdrawal of the aforementioned case from the Court of District Judge, Bathinda and transfer the same to District Judge, Ferozepur, who may either keep the case on his own file or transfer the case to another Court of competent jurisdiction.
17 . In Bhakti Sharma's case (supra), Allahabad High Court in paras 4 and 5 of the report has held thus-
The first issue raised in this transfer application was whether this High Court has power to transfer the proceedings from Jhansi to Gwalior where the Courts are subordinate to a different High Court, In this respect aDi vision Bench decision of Punjab and Haryana High Court in State Bank of India v. Sakew Industries has been referred. In this decision it was found that the High Court could order transfer of the case in exercise of its powers under Section 23(3) C.P.C. read with Section 151 C.P.C. in peculiar circumstances of a particular case to prevent abuse of the process of the Court. In that case the proceedings pending in Ballabhgarh Court in Punjab were transferred to Calcutta. A similar view was taken in Swami Swaroopanand v. Ramji by Division Bench of the Madhya Pradcsh High Court and it was held that the High Court can transfer a suit pending in a Subordinate Court to a Court subordinate to another High Court. It was further held that where a suit is sought to be transferred to a Court subordinate to another Court, the application for transfer has to be made in the High Court within whose jurisdiction the suit is pending. In the present case itself on a reference made by a Single Judge of this Court, the matter went up before a Division Bench. The decision of the Division Bench is reported in Munnalal v. State of U.P. . In the aforesaid decision of the Division Bench, it has been found that the Family Court is a Civil Court when it exercises powers and jurisdiction relating to matters referred to in explanation Sub-section (1) of Section 7 of the Family Courts Act, 1984 and, as such, the High Court has jurisdiction to transfer the cases from one Family Court to another under Sections 22, 23 and 24 of the Civil Procedure Code.
So far as the grounds of transfer are concerned it is clear that the Gwalior Court has jurisdiction to entertain the suit pending in the Jhansi court because the marriage between the parties was solemnised there. The Family Court at Jhansi has sent his comments in this matter and the learned Judge has reported that so far as the contents of paragraph 13 of the affidavit filed in support of the application are concerned there is some ring of truth about the apprehensions in the mind of Smt. Bhakti Sharma regarding danger to her life because on 2.5.1989 itself in the presence of the court concerned the opposite party, namely Mahendra Kumar Udenia issued a threat to kill the applicant while proceedings were going on inside the retiring room of the Presiding Judge. This report itself is sufficient ground to support the contention of the application that she has danger to her life if the proceedings continued in Jhansi Court. The applicant has requested for transfer of the case either to Guna or to Gwalior but it appears that Guna is about 200 Kilometers from Jhansi where as Gwalior is 100 kilometers from Jhansi. It would therefore, be more convenient for both the parties to contest the suit, at Family Court, Gwalior.
18. I may now refer to the two judgments cited by Mr. Kanuga. In Kiran Sohane's case (Supra), the Madhya Pradesh High Court in para 7 of the report has held thus-
It is no doubt true that the suit for divorce under Section 13 of the Act may be filed in the Court of the original civil jurisdiction where the marriage was solemnized where the respondent resides at the presentation of the divorce petition or where the parties to the marriage last resided together. It is an admitted fact that the parties last resided together at Waraseoni and, therefore, the divorce petition may be presented to the District Judge, Jabalpur or Warasconi. In the present case husband non-applicant preferred the forum of District Court Balaghat and that choice of the non-applicant in choosing the forum should not ordinarily be interfered except for valid reasons. As stated earlier, in the divorce proceedings, the trial court has already made an order for maintenance allowance pendente lite and the expenses of the suit in favour of the applicant and, therefore, in my opinion, there are no valid reasons to transfer the divorce proceedings from Balaghat or Waraseoni to Jabalpur. If, in the opinion, of the applicant, the maintenance allowance or the suit expenses were not adequate, the applicant was free to go in appeal or revision against the same. But that alone will not afford a ground for transfer of the divorce proceedings.
19. In Mayura Awasthi's case (Supra), the Madhya Pradesh High Court looked into the convenience of all the witnesses and also the question of lack of funds of the wife before passing the order in the following terms:-
It cannot be disputed that the non-applicant plaintiff could well file the suit under Sections 12 and 13 of the Hindu Marriage Act at Betul where the parties last resided together. The non-applicant, therefore, was well within his rights to choose the Betul Court as the forum for filing the suit. He cannot be deprived of this right unless the applicant made out a very strong case of balance of convenience in favour of the transfer. In my opinion, the applicant has not been able to discharge that burden successfully. All that she says is that the witnesses shall be from Jabalpur and that it will be more convenient to examine them at Jabalpur to avoid delay. It is also urged that she has no funds to defend herself at Betul. In answer, Shri N.P. Dube, learned Counsel for the non-applicant, stated at the bar that except Dr. Ghosh of the Medical College, no other doctor or witnesses shall be examined from Jabalpur. He also offered to examine Mr. Ghosh on commission so as to avoid delay and to accommodate the applicant. He stated that the non-applicant proposes to examine his mother, father and other inmates of the house as witnesses. Apparently, it will be convenient for all these witnesses if they are examined at a place where they reside. The question of lack of funds can well be met with by obtaining a decision on the application under Section 24 of the Act. I am not satisfied that it will be convenient to both the parties if the suit is transferred from the Court of the District Judge, Betul to Jabalpur.
20. There is consensus amongst various High courts that while considering the matrimonial case for transfer from one court to the other, the convenience of the wife has to be considered while keeping in mind the other relevant circumstances like the financial condition of the parties, travelling facilities, the residence of witnesses and conduct of the husband at a pi ace where the matrimonial case is pending. The court may also consider the distance between the place where the proceedings are pending and the place where proceedings are sought to be transferred and also the stand of the husband whether he is prepared to meet the journey expenses on each trip and also for lodging and boarding of the wife, her children and escort to attend each and every date of hearing. The power of transfer Under Section 24 should not be exercised as a matter of course and all facts and circumstances of the case, the conduct of the contesting party and the allegations against the husband have to be objectively assessed. If the inconvenience caused to the wife for undertaking journey to the place where proceedings are pending is mainly financial and if the husband is prepared to meet the journey expenses as well as expenses of lodging and boarding without there being anything more, a case for transfer may not be justified. In the background of this legal position, facts of the present controversy may be examined. In the present case, the proceedings for custody as well as divorce are pending before the court at Thane for the last about 6 years. It is not alleged by the wife that at any point of time, during the pendency of the proceedings, her husband ever threatened, intimidated or coerced her in conduct of the proceedings. There are no allegations that the husband ever exercised or tried to exercise influence upon the wife or witnesses. There is also no material worth the name that husband ever interfered with the wife's prosecution in conducting custody application and/or in defending divorce application. The custody application has been filed by the wife at Thane court and she has chosen the forum. It is true that presently, wife is residing with her children at Jamnagar and she has to undertake journey to Thane to attend the aforesaid proceedings and her inconvenience is mainly financial because she is not in a sound financial position to meet that burden. However, the husband has readily agreed to meet the expenses which may be incurred by the wife in travelling as well as the expenses of lodging and boarding and therefore, in my view, the interest of justice will be served if proper order is made directing the husband to meet the wife's such expenses in conducting the aforesaid cases and thus transfer of cases from Bombay to Jamnagar would not be required. I am informed by the learned Counsel for parties that most of the witnesses are also from Bombay and in case the matters are transferred to Jamnagar, large number of witnesses will have to be examined at Jamnagar which shall not be in the interest of justice.
21. Accordingly, I find that this is not a fit case where the Marriage Petition No. 99/90 pending in the court of Second Joint Civil Judge, Senior Division, Thane should be transferred to the court of Civil Judge, Senior Division, Jamnagar as also the transfer of as also Misc. Application No. 150/90 from the court of Third Addl. District Judge, Thane to the court of District Judge, Jamnagar. However, in view of the statement made by the learned Counsel for the Respondent-husband, it is directed that husband-respondent shall have to meet the entire actual expenses of journey as well as lodging and boarding of the wife, her children and any relative who may accompany the wife as escort to attend each and every date of hearing of the aforesaid proceedings. It will be open to the wife to travel by second class sleeper coach alongwith her children and escort from Jamnagar to Bombay and return journey and the entire journey expenses will be met by the husband. The wife shall also be entitled to the allowance of Rs. 500A towards lodging and boarding for herself, her children and escort for every date of hearing. The husband shall pay a sum of Rs. 1500/- in advance to the wife at lease 15 days before every date of hearing and the said amount will be adjusted while making payment of actual expenses and allowances as aforesaid on each date of hearing. No costs.
Certified copy expedited.