Madhya Pradesh High Court
Smt. Rakhi Mishra vs Sanjay Mishra on 8 January, 2007
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. This transfer application has been filed under Section 23(3) of the Civil Procedure Code for transfer of Case No. 65-A/05 pending before the 1st Addl. District Judge, Balaghat (M.P.) to Durg (Chhattisgarh).
2. Respondent/husband has filed a petition under Section 13 of the Hindu Marriage Act for obtaining divorce which is pending in the Court of 1st Addl. District Judge, Balaghat. Marriage was performed on 29-4-98, out of the wedlock, a child, namely, Ku. Rani was born who is residing with the petitioner at Durg. Husband of petitioner is a Development Officer in LIC and posted at Balaghat. Petitioner reported the matter to the police and husband is being prosecuted under Section 498A of IPC at Durg. An application under Section 125, Cr.PC has also been filed, that is also pending at Durg. Petitioner is working as Shikshakarmi Grade III as such interim maintenance has not been awarded as she is in receipt of salary of Rs. 3,500/- per month.
3. Transfer of the case has been sought from Balaghat (M.P.) to Durg (Chhattisgarh) on the ground that it is difficult for the petitioner to attend the dates of hearing at Balaghat as she is a woman and it will be difficult for her to obtain proper legal assistance at Balaghat, therefore, transfer of the case has been sought. She is residing at a place about 200 kms way from Balaghat. She also apprehends criminal assault, her job is temporary, she cannot take periodical leave. Reliance has been placed on decision of this Court in Smt. Lakshmi Nagdev v. Jitendra Kumar Nagdev 2005(1) M.P.H.T. 30, so as to transfer the case from Balaghat (M.P.) to 'Durg (Chhattisgarh).
4. Shri K. Palhak, earned Counsel appearing for petitioner has submitted that as Ku. Rani is obtaining instructions in KG-I, thus, she is an infant child, therefore, it would be difficult for the petitioner to attend the case at Balaghat. Convenience of the wife is supreme as laid down by the Apex Court in Reena Bahri v. Ajay Bahri and Sumita Singh v. Kumar Sanjay and Anr. , wherein it was observed that convenience of wife must be looked into. It would also not be possible to the petitioner to obtain proper legal assistance at Balaghat as respondent is an influential person posted as Development Officer.
5. Shri A.C. Thakur, earned Counsel appearing with Shri N. Rathore for respondent has submitted that no case for transfer of the case from Balaghat to Durg is made out, it is a nearby place which is 200 kms away. Petitioner is in service, Ku. Rani Mishra is aged about 5-6 years, thus, merely on the ground of convenience of wife, without anything more, transfer cannot be ordered and petitioner is being defended by the Counsel at Balaghat, evidence has also been recorded on 5-1-07 before the Court below.
6. The main question is whether merely on the ground that petitioner is a woman and for her convenience case can be transferred from Balaghat to Durg. No doubt about it that in Sumita Singh v. Kumar Sanjay and Anr. (supra), the Apex Court has ordered transfer of the case as the wife was residing at Delhi and case was pending at 1100 kms away at Ara, Bhojpur, she had none with whom she could stay in Ara, her parents were residing at Gurgaon. In the instant case, the case is pending at 200 kms away, places are well connected through the road, takes 3-4 hours in travelling to the place where the case is pending, facts are different in the instant case. In Reena Bahri v. Ajay Bahri (supra), the case was pending at Delhi, wife was residing at Bombay, wife was having small child with her, she was not having anybody who could conveniently accompany her to Delhi, therefore, transfer of the proceedings was ordered to Bombay. The aforesaid decision Reena Bahri v. Ajay Bahri (supra), has been considered by the Apex Court in the recent decision rendered in Anindita Das v. Srijil Das, (2006) 9 SCC 197, the Apex Court has observed that leniency shown in the matter of transfer has given rise to large number of petitions. Women take advantage of leniency shown by the Court, it was observed that leniency has been misused by the women, it is required to consider each petition on its merit. The ground to seek transfer was that the wife had a small child and that there was nobody to keep her child, child was aged 6 years, however, grand parents were available to look after the child, the husband was willing to pay the expenses of travel and stay of the petitioner and her companion for every visit, thus, transfer petition was dismissed by the Apex Court. The Apex Court has held thus:
2. In support of this petition, a large number of authorities have been cited, namely, Reena Bahri v. Ajay Bahri , Leena Mukherjee v. RabiShankar Mukherjee , Ram Gulam Pandit v. Umesh J. Prasad and Rajwinder Kaur v. Balwinder Singh . These authorities are all based on the facts of their respective cases. They do not lay down any particular law which operates as a precedent.
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 taken 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 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 ont.
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. When we consider facts of the instant case, a Counsel has been engaged at Balaghat and he is attending the case, legal assistance has been obtained, and it is undertaken by respondent's Counsel that no threat to security or any kind of obstruction shall be made by the respondent in any manner and respondent is ready and willing to bear the expenses of travel on each date of the petitioner and of a companion, in case he/she accompanies her, thus, it is ordered that for each and every date, the husband shall bear the expenses actually incurred and allowance of Rs. 200/- per day shall also be paid in addition thereto. Thus, transfer of the case is not being ordered in the instant case as the child is school going, petitioner is also in service, while she attends the dates child can be looked after by maternal grand parents, and Balaghat and Durg are not too far and distant places, a person can travel to and fro in one day, thus, considering the distance also, no case is made out for transfer of the case from Balaghat (M.P.) to Durg (Chhattisgarh).
8. Resultantly, petition is dismissed with the aforesaid directions to bear the expenses. No order as to costs.