-1- MCC No.2924/2016
MCC No.2924/2016
Jabalpur, Dated : 11.12.2017
Shri Deepak Raghuwanshi, learned counsel for
the applicant.
Shri Manoj Soni, learned counsel for the
respondent.
This application under Section 24 of the Code of
Civil Procedure, 1908 has been filed by the applicant
seeking transfer of Divorce Petition bearing Hindu
Marriage Case No.300/2016, pending before Principal
Judge, Family Court, Satna to Principal Judge, Family
Court Katni.
Briefly stated the facts of the case are that the
applicant and the non-applicant entered into wedlock
on 18.05.1995. After the marriage, the applicant was
residing with the non-applicant at Satna. Out of the
said wedlock two sons were born namely Ayushman
Sharma aged 17 years and Anuvrat Sharma aged 14
years, both are living with the applicant.
The respondent has instituted a matrimonial case
before the Principal Judge, Family Court, Satna on
17.09.2016 under Section 13(1) 1 (A) of the Hindu
Marriage Act, 1955 against the applicant for seeking
divorce on the ground of cruelty, adultery and
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desertion.
It is alleged that the applicant was harassed by
the non-applicant continuously right from the day of
the solemnization of the marriage as the members of
the family developed the pressure to bring money and
assets despite receiving the same at the time of
marriage. Since inception nothing smooth was going
on and the non-applicant humiliated the applicant.
After marriage quarrel used to take place on petty
issues. The respondent/husband is an alcoholic and
used to quarrel with the applicant and her children and
beat them on various occasions. The applicant and the
children were always under terror.
On the intervening night of 31.05.2015. the
applicant and her two children fled to Mathura to save
their lives as they were badly beaten up by the
respondent. They were brought back to Katni by her
parents and a written complaint was made at the
Police Station, Satna, but due to some political
influence, no action whatsoever, was initiated against
the non-applicant.
Applicant is living along with her old aged parents
and there is no companion to accompany her to attend
her case at Satna.
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The applicant apprehends danger to her person
that if she visits Satna to attend hearings in the case,
the respondent may abuse and beat her. It is also
submitted that the applicant will face great
inconvenience if her case is not transferred to Katni,
therefore, on these grounds she prays for transfer of
divorce petition from Satna to Katni.
On the other hand, respondent has filed his reply
in which the allegations made by the applicants are
denied. It is submitted that the applicant is having
relation with younger brother of her brother-in-law. It
is further stated that no grounds for transfer has been
made out by the applicant, since the applicant has
already engaged a counsel at Satna, who shall appear
in the case regularly and she can very well come
alongwith her sons whenever necessary and therefore,
no case is made out for transferring the case from
Satna to Katni and the same is liable to be dismissed.
Heard learned counsel for the parties.
Learned counsel for the applicant has placed
reliance in the case of Apeksha Yadav Vs. Amit
Kumar Yadav reported in 2017 (2) MPLJ 123,
wherein, learned counsel for the applicant has relied in
para 9 of a decision in the case of Jyoti Vs. Sanjay,
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2010(4) MPLJ 391 which is as follows:-
9. In the matter of transferring the cases
from one court to another, this court has to
consider the circumstance as laid down by
the Apex Court in the matter of Kulwinder
Kaur Vs. Kandi Friends Education Trust-
(2008)3 SCC 659 in which it was held as
under :-
“22. Although the discretionary power
of transfer of cases cannot be imprisoned
within a strait jacket of any cast-iron
formula unanimously applicable to all
situations, it cannot be gainsaid that the
power to transfer a case must be exercised
with due care, caution and circumspection.
23. Reading Ss.24 and 25 of the Code
together and keeping in view various
judicial pronouncements, certain broad
propositions as to what may constitute a
ground for transfer have been laid down by
the Courts. They are balance of
convenience or inconvenience to plaintiff or
defendant or witnesses; convenience or
inconvenience of a particular place of trial
having regard to the nature of evidence on
the points involved in the suit; issues
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raised by the parties; reasonable
apprehension in the mind of the litigant
that he might not get justice in the Court in
which the suit is pending; important
questions of law involved or a considerable
section of public interested in the litigation;
`interest of justice’ demanding for transfer
of suit, appeal or other proceeding etc.
Above are some of the instances which are
germane in considering the question of
transfer of a suit appeal or other
proceeding. They are, however, illustrative
in nature and by no means be treated as
exhaustive. If on the above or other
relevant considerations, the Court feels
that the plaintiff or the defendant is not
likely to have a `fair trial’ in the Court from
which he seeks to transfer a case, it is not
only the power but the duty of the Court to
make such order.”
Keeping in view the principles of law laid down in
the case cited above and on examining the case the
balance of convenience appears in favour of the
petitioner as she and her witnesses are residing at
Katni. Besides this it is an undisputed fact that
respondent/husband has filed a matrimonial case for
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divorce on the ground of cruelty, adultery and
desertion and in such premise, the apprehension in
mind of the applicant that on going to Satna she may
be subjected to cruelty and possibility of an untoward
incident by the respondent cannot be ruled out. It is
also settled principle of law that in the matter of
difficulties and convenience, the women requires more
consideration in comparison to men.
In view of the aforesaid submissions and also
looking to the facts that the apprehension in the mind
of the applicant that on going to Satna for recording
statements of the witnesses she may be subjected to
cruelty or any untoward incident may take place, the
balance of convenience lies in favour of the applicant
and transferring the case to Katni would give
opportunity to the applicant for fair trial without any
fear or coercion.
In view of aforesaid analysis, this Court is of the
opinion that it would be appropriate to transfer the
Hindu Marriage Case No.300/2016, pending before
Principal Judge, Family Court, Satna to Principal
Judge, Family Court Katni. Accordingly, it is directed
that Hindu Marriage Case No.300/2016 pending before
Principal Judge, Family Court, Satna be transferred to
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Principal Judge, Family Court, Katni for its adjudication
in accordance with law.
MCC stands allowed.
(S.A. DHARMADHIKARI)
JUDGE
das
Digitally signed by REENA DAS
Date: 2017.12.13 12:41:57
+05’30’
