Madhya Pradesh High Court
Smt. Malti Shakyawar vs Mukesh on 2 January, 2019
...1... MCC.No.2748/2018
MCC. No.2748/2018
(Smt. Malti Shakyawar V/s. Mukesh Shakyawar)
Indore dt.2.1.2019:-
Smt. Sudha Shrivastava, Advocate for the petitioner.
Shri Gagan Parashar, Advocate for the respondent.
Heard.
2. The petitioner - wife has approached this court by way of application under Section 34 of CPC, seeking the transfer of RCS No.57/18 from the court of 2nd Addl. District Judge Biaora Distt. Rajgarh to the court at Berasiya District Bhopal.
3. The facts of the case in short are as under :-
The petitioner being a resident of Berasiya, Distt. Bhopal got married with the respondent on 16.6.2017 as per the hindu ritual and rights. The marriage took place at Berasiya whereas, the respondent - husband is resident of Biaora, Distt. Rajgarh. After the marriage, they lived together for sometime and thereafter, they are living separately. The respondent has filed an application under Section 13 of the Hindu Marriage Act, before the 2 nd Addl. District Judge, Biaora, on the ground of cruelty. The petitioner received the summon and marked her presence before the court through her counsel, but now she is feeling difficulty to attained the court's proceeding therefore, she has approached this court by way of this petition. The petitioner is seeking transfer on the ground that she is a lady and there is no male member in the family to accompany her to attend the Court at Rajgarh. She is not feeling safe to travel from Berasiya to Biaora (Rajgarh) due to physically and economically conditions as distance between the Biaora Rajgarh and Berasiya is 74 Kms.
4. Smt. Sudha Shrivastava, Advocate for the petitioner submits that the court should show the leniency in favour of the wife while considering the application filed for seeking transfer. In support of her contention she has placed reliance over the ...2... MCC.No.2748/2018 judgment of the Apex Court passed in the case of Rajni Kishore Pardeshi V/s. Kishore Babulal Pardeshi, 2005 Lawsuit (SC) 302 and Rachna Kanodia V/s. Anuk Kanodia, 2001 Lawsuit (SC) 764.
5. Shri Gagan Parashar, Advocate for the respondent submits that application filed for transfer of matrimonial case cannot be considered only on the basis of apprehension shown by the wife. He further submits that the distance between two places is only 74 Kms and all the means of transportation are available. Initially the applicant is required to attained the proceeding for the purpose of mediation / settlement or conciliation. The application is very vague in nature and liable to be dismissed. In support of his contention he has placed the reliance over the judgment of the Apex Court in the case of Krishna Veni Nagam V/s. Harish Nagam, reported as (2017) 4 SCC 150 and the order passed by this court in the case of Sangeeta Bhojak V/s. Rajkumar Bhojak reported as 2017 (3) MPLJ 565 and prays for dismissal of the petition.
6. The respondent - husband has filed the petition seeking divorce on the ground of cruelty. He has alleged that she is not discharging the liability as a wife and insisting to him for living separately from parents and the sisters. His father, mother and sisters are totally dependant upon him and being a only son, he cannot leave them. She is having qualification of B.Ed and B.Sc and earning Rs.10,000/- by way of teaching in private school. Last time she came to his house in the month of January, 2018 and thereafter did not return without any reasons and now she is threatening him for false implication into the criminal case.
7. The applicant is seeking transfer of the proceeding only on the ground that distance between Biaora Rajgarh and Berasiya is 74 Kms and there is no male member in the family to accompany her to attend the Court's proceedings. She has to face serious hardship and difficulties both physically as well as economically.
8. The petitioner has already appeared before the Court at ...3... MCC.No.2748/2018 Biaora Rajgarh through her counsel. The distance between two places is only 74 Kms. In the case of Anita Das V/s. Sirjit Das, reported as 2006 (9) SCC 197, the Apex Court has held that the court is required to consider each petition seeking transfer of the matrimonial case on its merit and in each and every case the leniency cannot be shown to the ladies. Para 3, 4 and 5 are reproduced below :-
3. Even otherwise, it must be seen that at one stage this court was showing leniency to laides. 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 lease 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 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."
9. In the case of Krishna Veni Nagam V/s. Harish Nagam (supra), the Apex Court has also considered the problem faced by the husband if proceedings are transferred on account of genuine ...4... MCC.No.2748/2018 difficulties faced by the wife. The Apex Court instead of transferring the case, issued certain safeguards, which can be followed like availability of conveyance facility, video conferencing facility, Legal Aid Service, deposit of cost for travelling, lodging and boarding, communication by E-mail or phone number etc. para 17 and 18 are relevant which reads as under :-
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 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.
10. In the present case, the respondent has filed the application under Section 13 of Hindu Marriage Act, seeking divorce on the ground of cruelty. He is required to prove his case by way of evidence. If the proceedings are transferred from Biaora Rajgarh to Berasiya then, he will have to bring all his witnesses to the ...5... MCC.No.2748/2018 Berasiya, therefore, entire proceeding on the basis of apprehension of the petitioner that she may face problem in future while attending the proceedings at Biaora cannot be transferred.
11. Parties are not required to attained each and every date of the proceedings his / her lawyer can attain the proceedings. The presence of parties are required in matrimonial cases only at the stage of conciliation and the evidence. The rest of the proceedings can be attended by their counsel. Hence, at this stage, I do not find any special reason for transfer of the RCS No.57/2018, from Biaora Rajgarh to Berasiya at Bhopal. However petitioner is at liberty to file fresh application for transfer, if occasion so arises in the future but not on the grounds which already been considered by this court.
12. The petition is, accordingly, dismissed.
(VIVKE RUISIA) JUDGE SS/-
Digitally signed by Shailesh Sukhdev Date: 2019.01.05 15:50:42 +05'30'