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Karnataka HC: bonafide of wife doubtful, her transfer petition dismissed

http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/76130/1/CP247-14-26-08-2015.pdf

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Categories: Judgement

Transfer sought as judge did chamber mediation and allegation of bias against judge, DISMISSED: Kerala HC

Kerala High Court
Mc 278/2013 Of Family Court vs Jinumol Baby
       

  

   

 
 
         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        PRESENT:

         THE HONOURABLE MR.JUSTICE P.BHAVADASAN

  WEDNESDAY, THE 29TH DAY OF OCTOBER 2014/7TH KARTHIKA,
                          1936

              Tr.P(Crl.).No. 49 of 2014 ()
              -----------------------------
   MC 278/2013 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR.


PETITIONER(S)/PETITIONER:
-------------------------

      JINUMOL BABY, AGED 23,
      D/O.LISA BABY, PALAKULATH HOUSE,
      THIRUVANCHOOR P. O.,
      MANARKAD, KOTTAYAM DIST, PIN-686037,

      BY ADV. SRI.P.M.SEBASTIAN

RESPONDENT(S)/RESPONDENTS:
--------------------------

      TINU MATHEW, AGED 26,
      S/O.THANKACHAN, THAKITIYIL HOUSE,
      MEENACHIL P. O.,
      PALA, KOTTAYAM DIST, PIN-686589

      R1 BY ADV. SRI.P.K.RAVISANKAR

        THIS TRANSFER PETITION (CRIMINAL)     HAVING BEEN
FINALLY  HEARD    ON    29-10-2014  ALONG  WITH  T.P.(C).
336/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:



                      P. BHAVADASAN, J.
                 - - - - - - - - - - - - - - - - - - - - - -
                    Tr.P.(Crl). No. 49 of 2014
                  & Tr.P.(C) No. 336 of 2014.
                  - - - - - - - - - - - - - - - - - - - - - -
           Dated this the 29th day of October, 2014.

                              JUDGMENT

This is a petition filed under Section 407 of the Code of Criminal Procedure seeking transfer of M.C. 278 of 2013 pending before the Family Court, Ettumanoor to Family Court, Pala or any other court.

2. Suffice to say, the respondent, who is a handicapped person, married the petitioner. Their relationship got strained. The respondent would say that they were leading a very happy life, but the petitioner would say otherwise. According to the respondent, one day she left the house and even though there were settlement talks and they stayed together for a while, they fell apart. Inspite of repeated demands by the parents of the respondent to the petitioner to return, that did not materialize. Thereafter the respondent moved M.C.278 of 2013.

Tr.P.(Crl).49/2014 & Tr.P.(C) 336/2014.

3. One of the grounds raised for transfer is that the Judge of the Family Court, Ettumanoor is biased. According to the petitioner, at the time of discussion the Judge of the Family Court told the petitioner to enter into a compromise by threatening her with dire consequences. According to the petitioner, in fact it is stated that the the petitioner believes that she will not get any favourable orders from that court and also that the Judge had already taken a decision in the matter.

4. In the light of the allegations made in the petition, a report was called for from the Family Court Judge concerned. The Family Court Judge has submitted a detailed report which on the very face of it shows that the allegations made in the petitions are totally false. It is discernible from the report that earnest and sincere efforts were made by the Tr.P.(Crl).49/2014 & Tr.P.(C) 336/2014.

Family Court Judge to have the matter settled and on failure to do so, posted the case for further proceedings. It is seen from the report that the averment of the petitioner that there were 12 postings of the case is obviously wrong in the light of the fact that in the report of the Family Court Judge it is stated that there was only one posting and that was on 1.7.2014. It is also stated in the report that she has no objection in transferring the petition and that the allegations against her is totally false and that may be taken serious note of.

5. After having given anxious consideration of the facts, it can be seen that the claim made by the petitioner that the Family Court Judge is biased is obviously false. This Court is of the view that if such petitions are to be entertained, that will give a wrong message and that should not be encouraged. The Family Court Judge in her report has detailed the sincere efforts made by her to settle the matters in her Chambers. Tr.P.(Crl).49/2014 & Tr.P.(C) 336/2014.

The statements made by the Judge need not be doubted.

In the result, these petitions are without merits and they are accordingly dismissed.

P. BHAVADASAN, JUDGE sb.

Categories: Judgement

HC: Transfer petition of wife dismissed, ground (Mysore, bangalore 170 KM is well connected)

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Karnataka High Court
Dakshayani N vs Shivanna K on 3 June, 2014
Author: Ram Mohan Reddy

1

C.P.No.126/14

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF JUNE 2014

BEFORE

THE HON’BLE MR. JUSTICE RAM MOHAN REDDY

CIVIL PETITION No.126/2014

BETWEEN:

DAKSHAYANI N.,

AGED ABOUT 34 YEARS,

W/O SRI K.SHIVANNA,

C/O ANUSUYA,

R/AT NO.23, GROUND FLOOR, 3RD MAIN, MEENAKSHINAGAR, SHARADHA COLONY,

BEHIND KRISHNA KALYAN MANTAP, BASAVESHWARANAGAR,

BANGALORE – 79.

…PETITIONER

(BY SRI N.VAGEESH, ADV.)

AND:

SHIVANNA K.,

AGED ABOUT 45 YEARS,

S/O LATE SRI KRISHNAPPA, R/AT MIG 80, BOGADI 2ND STAGE, HUDCO, SHARADADEVI NAGAR, MYSORE – 570 026.

…RESPONDENT

THIS CIVIL PETITION FILED UNDER SECTION 24 OF CPC PRAYING TO TRANSFER THE PETITION FILED BY THE RESPONDENT IN M.C.NO.593/2013, WHICH IS PENDING ON THE FILE OF ADDITIONAL FAMILY COURT, MYSORE, TO THE PRINCIPAL FAMILY COURT, BANGALORE.

THIS CIVIL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: 2

C.P.No.126/14

ORDER

This petition for transfer of M.C.No.593/2013 on

the file of the Additional Family Court, Mysore, to the

Principal Family Court, Bangalore instituted by the

respondent/husband for divorce is without merit, since

the distance from Bangalore to Mysore by road is about

170 kms and well connected by public transport facility

both by train and by road. In fact, KSRTC runs buses

every ten minutes from Bangalore to Mysore. In that

view of the matter, petition stands rejected.

Sd/-

JUDGE

kcm

Categories: Judgement

Transfer petition of wife rejected citing “A transfer should not readily be granted for any fancied notion of a litigant.”

Punjab-Haryana High Court
Harjinder Kaur vs Narinder Singh Mangat on 4 January, 2012
TA No.601 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

TA No.601 of 2011

Date of decision: 4.1.2012

Harjinder Kaur

….Applicant

Versus

Narinder Singh Mangat

…Respondent

CORAM: HON’BLE MR.JUSTICE JITENDRA CHAUHAN

Present: Mr.Gopal Sharma, Advocate for the applicant. Mr.Arvind Kashyap, Advocate for the respondent *****

Jitendra Chauhan, J.(Oral)

The present application under Section 24 of the Code of Civil Procedure has been filed by the applicant/wife, seeking transfer of the petition titled as `Narinder Singh Mangat vs. Harjinder Kaur’, filed by the respondent/husband under Section 11 of the Hindu Marriage Act, 1955, (for short `the Act’) from the court of learned Additional District Judge, Fatehgarh Sahib, to any other court of competent jurisdiction at Mohali. I have heard the learned counsel for the parties and perused the case file.

There is no force in the arguments of the learned counsel for the applicant. She has not lodged any complaint regarding demand of dowry etc. As per the reply filed on behalf of the respondent, the applicant has filed a civil suit, which is pending at Fatehgarh Sahib. She has filed a petition under Section 125 Cr.P.C. at Fategarh Sahib as well as a complaint TA No.601 of 2011 2 under the Protection of Women from Domestic Violence Act, which are pending at Fatehgarh Sahib. Apart from this, the daughter of the applicant is studying at Sanghol, District Fatehgarh Sahib. The averment of the applicant that the brother of the respondent is a lawyer at Fatehgarh Sahib, has no force as it has not been pointed out as to how the brother of the respondent can influence the administration of justice, nor any instance of any attempt on his part to influence the court, has been cited. Mere presumption or apprehension is not sufficient for a case to be transferred. A transfer should not readily be granted for any fancied notion of a litigant. The yardstick is “in the interest of justice”. The applicants should repose confidence in judicial process. The apprehension of the applicant is baseless and deserves to be rejected. Moreover, the distance between Fatehgarh Sahib and Mohali is merely 35 Kms. No sufficient ground is made out to transfer the case. In view of the above, the present application is dismissed. However, the respondent is directed to pay the travelling expenses to the applicant, which is quantified at `15,00/- per visit, only in the petition titled as ‘Narinder Singh Mangat vs. Harjinder Kaur’, filed by the respondent/husband under Section 11 of the Hindu Marriage Act, 1955, (for short `the Act’) pending in court of learned Additional District Judge, Fatehgarh Sahib.

4.01.2012 (JITENDRA CHAUHAN) gsv JUDGE

http://indiankanoon.org/doc/198803983/

Categories: Judgement

Transfer petition of wife rejected by High Court

Kolkata High Court (Appellete Side)
60/2012 on 30 January, 2012
Author: Tapan Kumar Dutt
1.2012

C.O. 60 of 2012

Mr. Shyamal Kr. Das,

Mr. Somnath Banerjee … for the Petitioner

The wife-petitioner is a resident of Howrah District and the husband- opposite party is a resident of Hooghly District and the said Districts are very near to each other.

The wife-petitioner has filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 in the Court of the learned Judicial Magistrate at Howrah which is pending. The husband-opposite party has filed a Matrimonial Suit in the Court of the learned District Judge at Hooghly which is also pending. The wife-petitioner has sought for transfer of the said Matrimonial Suit to the Court of the learned District Judge at Howrah. This Court does not find any sufficient reason to pass any order of transfer of the Matrimonial Suit considering the fact that the wife-petitioner will not be put to any serious inconvenience for attending the Matrimonial Suit in the learned Court at Hooghly. There is no merit in the application under Section 24 of the Code of Civil Procedure which is dismissed. Urgent certified xerox copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. ( Tapan Kumar Dutt, J. )

AKD

http://indiankanoon.org/doc/136468997/

Categories: Judgement

HC Directed parties to file mutual consent divorce within 15 days but parties still fighting it out!!

Supreme Court of India
Deepti Bhandari vs Nitin Bhandari & Anr on 14 December, 2011
Author: A Kabir
Bench: Altamas Kabir, Surinder Singh Nijjar, J. Chelameswar

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO.5213 Of 2010

Deepti Bhandari … Petitioner Vs.

Nitin Bhandari & Anr. … Respondents WITH

TRANSFER PETITION (C) NO.856-857 OF 2010

O R D E R

ALTAMAS KABIR, J.

 

1. The Petitioner and the Respondent No.1 were married to each other according to Hindu rites at Jaipur in the State of Rajasthan on 20th February, 2007. A girl child, Mannat, 2

was born prematurely to the couple on 3rd April, 2008, and had to be kept in incubator for about three weeks. It is the Petitioner’s grievance that while they were on their honeymoon in Mauritius, the Respondent No.1, husband, began to treat her with physical and mental cruelty. Even during her pregnancy, she was ill-treated. Ultimately, being unable to withstand the physical and mental cruelty inflicted both on the Petitioner and her minor daughter, the Petitioner was compelled to leave the matrimonial home and return to her parents on 7th October, 2008.

 

2. On 6th December, 2008, the Respondent No.1, husband, filed an application under Section 9 of the Hindu Marriage Act, 1955 (Case No.609 of 2008) against the Petitioner, for restitution of conjugal rights. Unable to bear the shock of the incidents, which had taken place since the Petitioner’s marriage with the Respondent No.1, the Petitioner’s grandparents suffered heart and paralytic attacks, as a result of which they have become completely bed-ridden. According to the Petitioner, on account of the cruelty meted 3

out to her and the child, the Petitioner filed FIR No.7 of 2009 complaining of offences alleged to have been committed by the Respondent No.1 punishable under Sections 498-A and 406 IPC.

 

3. It is the Petitioner’s further case that in order to settle the matter peacefully, the Petitioner entered into a compromise with the Respondent No.1 on 25th February, 2009, so that she could start her life all over again and to acquire financial independence to provide for herself and for providing proper care to the child on her own. Pursuant to the terms of the compromise, the Petitioner withdrew her complaint under Sections 498-A and 406 IPC, but the Respondent No.1 failed to appear before the Family Court No.2 at Jaipur on 2nd December, 2010, to present a Petition for mutual divorce, as had been agreed upon in the compromise.

 

4. At this stage, it may be mentioned that on 5th May, 2009, the Petitioner filed a complaint against the Respondent No.1 and his family members under the provisions of the 4

Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as `PWD Act’) before the Upper Civil Judge (A,B) and Judicial Magistrate Serial No.18 Jaipur City, Jaipur, being Criminal Legal Case No.13 of 2009. Soon, thereafter, on 1st June, 2009, charge-sheet was filed against the Respondent No.1 and his family members in FIR No.7 of 2009 which had been filed by the Petitioner under Sections 498-A and 406 IPC. The next day, on 2nd June, 2009, the Respondent No.1, husband, moved an application under Section 21 of the above Act for visitation rights, which was dismissed by the learned Judge, Family Court.

 

5. The Respondent No.1 filed Criminal Appeal No.455 of 2009 on 25th August, 2009 against the aforesaid order dated 2nd June, 2009, before the Court of Upper District Judge (Fast Track) No.9, Jaipur City, Jaipur, which dismissed the same.

6. On 18th September, 2009, the Respondent No.1 filed a Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.1977 of 2009) for quashing of the charge-sheet 5

in FIR No.7 of 2009 and further proceedings before the learned Judicial Magistrate-I, No.15, Jaipur City, Jaipur, were stayed therein. On 7th October, 2009, the Respondent No.1 filed another Petition under Section 482 Cr.P.C. (S.B. Criminal Misc. Petition No.2139 of 2009) for quashing of Criminal Legal Case No.13 of 2009 filed by the Petitioner under Section 12 of the PWD Act, 2005. The High Court also stayed the said proceedings pending before the Upper Civil Judge (A,B) and Judicial Magistrate, Serial No.18, Jaipur City, Jaipur.

 

7. On 22nd January, 2010, when both the matters came up before the High Court for consideration, the High Court directed the Petitioner and the Respondent No.1 to settle their disputes and to apply for divorce by mutual consent within 15 days. The order was passed in the presence of both the parties. While giving the aforesaid directions, the High Court also passed orders allowing visitation rights to the Respondent No.1, husband, in respect of the minor child.

6

 

8. On 17th February, 2010, the Respondent No.1 filed S.B. Criminal Revision Petition No.1 of 2010 before the Jaipur Bench of the Rajasthan High Court against the order dated 25th August, 2009 passed in Criminal Appeal No.455 of 2009 dismissing his application for visitation rights. The Respondent NO.1 also filed Application No.3051 of 2010 in S.B. Criminal Misc. Petition No.1977 of 2009 praying for similar visitation rights. On 8th April, 2010, the said application for visitation rights was allowed and the Petitioner was directed to arrange for the meeting of the Respondent No.1 with the Petitioner and their minor daughter at the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m.

9. This is the genesis of the problem which is the subject matter of the present Special Leave Petition.

 

10. According to the Petitioner, on 14th April, 2010, the Petitioner’s brother got admission with I.I.P.M. in Delhi, which required him to shift to Delhi for his higher 7

education and the Petitioner also decided to come to Delhi to establish herself professionally to be able to maintain herself and her minor daughter. According to the Petitioner, since then she has been residing in Delhi and the order directing visitation rights to the Respondent No.1 to meet the minor child at Jaipur in the office of the learned counsel for the Respondent No.1 became extremely difficult for her. The Petitioner thereupon moved an application in the High Court on 30th April, 2010, for modification of the order of 8th April, 2010, and instead of Jaipur, to shift the place of visitation to Delhi. The said application was disallowed by the High Court on 5th May, 2010, resulting in the filing of the Special Leave Petition on 17th June, 2010.

 

11. During the pendency of these proceedings, the Petitioner also filed Transfer Petition (Civil) Nos.856-857 of 2010 for transfer of Case No.279 of 2009, which had been filed by the Respondent No.1 under Section 9 of the Hindu Marriage Act and Case No.65 of 2009 also filed by him under Section 25 of 8

the Guardians and Wards Act, 1890, from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. One of the grounds taken in the Transfer Petitions is that in the interest of the child, this Court had directed the Respondent No.1 to visit the child on the 2nd and 4th Saturday of each month at an address in New Delhi and the Petitioner was directed to take the child on the 1st and 3rd Saturday of each month to an address in Jaipur to enable the Respondent No.1 to meet his minor daughter. It was also submitted that the Petitioner had received threats that the case should be pursued in Jaipur instead of Delhi and that fearing for her safety and that of the minor child, she had prayed that the proceedings referred to hereinabove pending before the Court at Jaipur be transferred to a Family Court, having competent jurisdiction, to hear and try the matter in Delhi.

12. As will be seen from the narration of facts which intervened between the Petitioner and the Respondent No.1 during their brief matrimonial obligations towards each 9

other, the child has now become the source of acrimony between them.

 

13. Although, it was repeatedly urged on behalf of the Respondent No.1 that the Petitioner was still residing in Jaipur and not in Delhi and that the Transfer Petitions had been filed only to cause harassment to him and the other members of his family, such suggestions were strongly denied on behalf of the Petitioner. It was submitted on her behalf that on account of her minor child and the threats extended to her, it would prove extremely difficult for her to defend the case instituted against her by the Respondent No.1 or to conduct the cases which she had filed against the Respondent No.1 and his family members in FIR No.7 of 2009, in which charge-sheet had been filed, in Jaipur. In any event, considering the difficulties on either side in attending to the several cases pending between them and in order to balance the same, we are inclined to accept the submissions made on behalf of the Petitioner and to modify the order dated 8th April, 2010, whereby the Petitioner was directed to 10

arrange for the meeting of the Respondent No.1 with herself and their minor daughter in the office of the learned counsel for the Respondent No.1 on every Saturday between 11.00 a.m. and 1.00 p.m. and also the subsequent order dated 5th May, 2010, passed by the High Court rejecting her prayer to move the place of visitation from Jaipur to Delhi.

14. It is true that transfer of the several cases to Delhi is likely to cause some inconvenience to the Respondent No.1 and his family members, but it cannot be denied that it would be easier for the Respondent No.1 to attend to the proceedings in Delhi than for the Petitioner to attend to the same in Jaipur, while staying in Delhi with her minor child. We, therefore, see no substance in the persistent demand of the Respondent No.1 that he should be allowed to meet the Petitioner and their minor child at Jaipur to enable him and his family members to meet the child on a regular basis. In our view, it is the Respondent No.1 who should make an effort to meet his minor child in Delhi as and when he wishes to do so. The Petitioner can have no 11

objection whatsoever to such an arrangement and must also ensure that the child is able to meet her father in terms of the order of this Court on all weekends in New Delhi instead of the second and fourth Saturday of each month.

15. As far as the difficulty expressed on behalf of the parents of the Respondent No.1 is concerned, they will be free to apply to the Trial Court for exemption from personal appearance on the dates of the different cases and if such applications are made, the same should be considered by the Trial Court looking to the physical difficulties that may be faced by the parents of the Respondent No.1, who are both considerably aged. The visitation rights granted to the Respondent No.1 will have equal application to his parents and they too will be at liberty to visit the minor child in Delhi, as and when they wish to do so, along with the Respondent No.1.

 

16. The application for modification of the order dated 8th April, 2010, filed by the Petitioner before the High Court on 30th April, 2010, which was dismissed by the High 12

Court, is, accordingly allowed along with the Transfer Petitions filed by the Petitioner. The order of 8th April, 2010, is modified to the extent indicated above, whereby the Respondent No.1 and his parents will be entitled to meet the minor child, Mannat, on every Saturday in New Delhi, between 10.00 a.m. and 6.00 p.m. In the event, the child is willing, the Respondent No.1 may also take her out for the day and return her to the custody of the Petitioner within 6.00 p.m. This arrangement will continue, until further orders.

 

17. In addition, Transfer Petition (Civil) Nos.856-857 of 2010 filed by the Petitioner are allowed. Let Case No.279 of 2009, which had been filed by the Respondent No.1 under Section 9 of the Hindu Marriage Act and Case No.65 of 2009, also filed by him under Section 25 of the Guardians and Wards Act, 1890, be transferred from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. The transferor Court is directed to send the records of the aforesaid cases to the transferee Court, so that the matter 13

may be heard and disposed of by the transferee Court with the utmost expedition.

 

18. In view of the facts involved, the parties will each bear their own costs in these proceedings.

……………………………………………………J. (ALTAMAS KABIR)

……………………………………………………J. (SURINDER SINGH NIJJAR)

……………………………………………………J. (J. CHELAMESWAR)

New Delhi

Dated: 14.12.2011

Categories: Judgement

HC: Transfer petition should be allowed only in exceptional circumstances, wifes transfer petition dismissed

1213/2011 on 16 May, 2011
Author: Tapan Kumar Dutt

1

2 16.05.11

C.O. 1213 of 2011.

Mr. Hiranmoy Bhattacharjee

Mr. Pradip Ray

Mr. Ujjal Ray … For the Petitioner. The learned Advocate for the wife/petitioner files a supplementary affidavit today.

Let the same be kept on record.

In the present application the wife/petitioner has prayed for transfer of Matrimonial Suit No. 2170 of 2010 pending in the Court of the learned District Judge, Alipore to the Court of the learned Additional District Judge, Barrackpore. The said Matrimonial Suit has been filed by the husband/opposite party against the wife/petitioner.

It appears that at the instance of the wife/petitioner proceedings under Section 498A I.P.C and also proceedings under Section 125 Cr.P.C are pending in the learned Courts concerned at Barrackpore. It also appears from the Supplementary Affidavit that the wife/petitioner has to attend the School of her child S.D.

2

everyday and it takes about one hour to cover the distance from her residence to the School. The learned Advocate for the wife/petitioner submits that there is no one to escort the wife/petitioner to the learned Court where the Matrimonial Suit is pending. The said learned Advocate cited a decision reported at 2005(13) SCC 158. It appears from the said reports that the wife in the said case was expected to go from Rohtas to Ujjain which involved huge expenses. Obviously, the distance between Rohtas and Ujjain can not be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2005(13) SCC 413. It appears from the said reports that the Hon’ble Court found in the said case that most of the witnesses who were to be examined on behalf of the respondents in the said case were residents of Muzaffarpur, Bihar and in such circumstances the transfer petition was allowed by directing the Matrimonial Case concerned in the said case to be transferred to Muzaffarpur.

The said learned Advocate cited another 3

decision reported at 2000(9) SCC 255. The distance involved in the said reports was the distance between Bombay and Delhi and in such circumstances the Hon’ble Court was pleased to transfer the Matrimonial Case from the Court concerned at Bombay to the Court concerned at Delhi. The distance between Bombay and Delhi cannot be equated with the distance between Khardah and Alipore. The next decision cited by the said learned Advocate is the one reported at 2000(9) S.C.C. 355. The distance involved in the said reports was the distance between Jaipur and Bombay and in those circumstances the Hon’ble Court found that it will be difficult for the wife in the said case to go all the way from Jaipur to Bombay. Again, the distance between Jaipur and Bombay cannot be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2000(9) SCC 453. The distance involved in the said reports was the distance between Hyderabad and Bangalore. It also appears that in spite of notice none had appeared to contest the application filed by the wife/petitioner. It further appears that a petition 4

for restitution of conjugal rights was pending before the learned Family Court at Bangalore in the said case. In such circumstances, the Hon’ble Court transferred the divorce petition concerned from the learned Court concerned at Hyderabad to the Family Court at Bangalore. The distance between Hyderabad and Bangalore cannot be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2008(17) SCC 482. The distance involved in the said reports was the distance between Tripura, Agartala and Howrah, West Bengal and such distance cannot be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2009(16) S.C.C. 188, where from it appears that the distance involved in the said reports was about 900 k.ms. and there was none in the family of the wife to escort her during her journey from Mumbai to Indore. Obviously, the distance of 900 k.ms. cannot be equated with the distance between Khardah and Alipore. That apart, the petitioner has stated in her 5

affidavit that she has to attend the School of her child which is one hour distance (one way) and it does not appear from the said affidavit that any one has to escort her for the purpose of such journey. She has alleged that it takes two hours forty five minutes to travel from her residence to the learned Court concerned at Alipore. Even if it is assumed, for the sake of argument, that it really takes two hours forty five minutes for the wife/petitioner to cover the distance between her residence and the Alipore Court concerned, this Court does not see any reason as to why she cannot travel such distance without any escort since she already has to travel a distance of about two hours whenever her child’s School is open and such travelling is done by herself alone. The aforesaid decisions cited on behalf of the wife/petitioner do not help the wife/petitioner in the facts and circumstances of the present case. In 2006(9) S.C.C. 197 which was also cited by the learned Advocate for the wife/petitioner, the Hon’ble Supreme Court was pleased to observe, inter alia, as follows:-

“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 6

transfer petitioners 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 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.”

It is needless to say that if the wife/petitioner has any difficulty in meeting her expenses for attending the Matrimonial Suit concerned, the wife/petitioner will be entitled to make an appropriate application before the learned Trial Court for appropriate directions upon the husband/opposite party for meeting her expenses for attending the said Matrimonial Suit and if such application is made the learned Trial Court will have to 7

decide the same in accordance with law. This Court is of the view that the distance between Khardah and Alipore is not at all a formidable distance and on the days when the wife/petitioner will be required to attend the said Matrimonial Suit, the wife/petitioner will have to make necessary arrangements for taking proper care of her child in case the child has to attend his School on the said days.

Orders under Section 24 C.P.C., seeking transfer of proceedings, should not be made as a general rule but such orders of transfer may be required to be passed in exceptional circumstances only. This Court does not find any merit in the application under Section 24 C.P.C which is dismissed. Urgent xerox certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. (Tapan Kumar Dutt, J.)

http://indiankanoon.org/doc/612024/

Categories: Judgement