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Smt. Priyanka vs Deepak Singh on 5 July, 2021

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1
HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

Gwalior, dated 05-07-2021

Shri Atul Gupta, Counsel for the applicant.
Shri Deepak Khot, Counsel for the respondent.

Heard finally

1. This application under Section 24 of C.P.C. has been filed for

transfer of case No. 1003A/2014 pending in the Court of Principal

Judge, Family Court, Gwalior to Family Court, Morena.

2. The case of the applicant is that the parties got married on 31-

1-2013 as per Hindu rites and rituals in Gwalior. Immediately after

the marriage, her in-laws started harassing her on the issue that car

has not been given. After 6 days of marriage, the respondent went to

Delhi. The applicant later on came to know that the respondent was

already living in live-in relationship with another girl namely “X”,

but still the applicant continued to tolerate the harassment of her in-

laws. The respondent, his sister and mother continued to harass the

applicant for demand of a car or 2 Bigha land. The applicant also

went to Gurgaon to stay with the respondent, where his friend “X”

used to visit the house and just after 10 days, the applicant was left by

the respondent in her matrimonial house in Gwalior after beating her.

3. On 16-12-2014, the respondent filed an application under

Section 13(1) of Hindu Marriage Act, for grant of divorce, before the

Court of Family Court, Gwalior, which is registered as Case No.

1003A/14 and is pending.

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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

4. The applicant also filed an application under Section 9 of

Hindu Marriage Act before the Court of Family Court, Morena which

is pending. An application under Section 12 of The Protection of

Women From Domestic Violence Act is also pending in Morena.

5. It is the case of the applicant that She is apprehensive of

attending the Court proceedings in case No. 1003A/2014, therefore,

the same may be transferred to Family Court, Morena.

6. Per contra, the application is vehemently opposed by the

Counsel for the respondent. It is submitted by Shri Khot that Since,

Section 21-A of Hindu Marriage Act governs the field therefore, an

application under Section 24 of CPC is not maintainable.. Since the

application under Section 13(1) of Hindu Marriage Act was filed by

the applicant prior in time, therefore, the application filed by the

applicant under Section 9 of Hindu Marriage Act is liable to be

transferred to Gwalior. It is further submitted that in fact the father of

the applicant is a practicing lawyer in Morena and, therefore, he

always manipulate the case. Furthermore, the mother of the

respondent had also lodged a FIR as she was threatened by Virendra

Singh, Sarpanch of Gram Panchayat Hamirpur, Kamlesh, Suraj and

others and the respondent was also thrown on the ground. It is

submitted that in case if the application filed by the respondent under

Section 13(1) of Divorce Act is transferred to Morena, then the

respondent has a threat to his life. It is next contended by the
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

Counsel for the respondent that in the reconciliation proceedings

which had taken place before the Parivar Paramarsh Kendra, in the

year 2015, the applicant had admitted that She has taken possession

of the house of the respondent and has inducted tenants. It is

submitted that therefore, it is clear that the applicant is residing in

Gwalior, therefore, the case should not be transferred to Morena.

7. In reply, it is submitted by the counsel for the applicant that so

far as the application filed by the applicant under Section 9 of Hindu

Marriage Act is concerned, the same has been decided and decree for

restitution of conjugal rights has been passed against the respondent.

Under these circumstances, the provisions of Section 21-A of Hindu

Marriage Act would not be applicable because at present no

proceedings under Section 9 of Hindu Marriage Act are pending

before the trial Court.

8. In reply, it is fairly conceded by the counsel for the respondent

that a decree under Section 9 of Hindu Marriage Act has been passed

against the respondent. It is submitted that F.A No.1581/2019 was

filed against the said judgment and decree. However, it is submitted

that due to non-compliance of peremptory order dated 12.12.2019,

the said appeal has been dismissed in default and MCC No.461/2021

for restoration of the said appeal is pending.

9. Heard the learned Counsel for the parties.

10. Section 21-A of Hindu Marriage Act reads as under:
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

21A. Power to transfer petitions in certain cases. – (1)
Where-

(a) a petition under this Act has been presented to a
district court having jurisdiction by a party to a marriage
praying for a decree for judicial separation under section 10
or for a decree of divorce under section 13; and

(b) another petition under this Act has been presented
thereafter by the other party to the marriage praying for a
decree for judicial separation under
section 10 or for a
decree of divorce under
section 13 on any ground, whether
in the same district court or in a different district court, in
the same State or in a different State, the petitions shall be
dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies,

(a) if the petitions are presented to the same district
court, both the petitions shall be tried and heard together by
that district court;

(b) if the petitions are presented to different district
courts, the petition presented later shall be transferred to
the district court in which the earlier petition was presented
and both the petitions shall be heard and disposed of
together by the district court in which the earlier petition
was presented.

In a case where clause (b) of sub-section (2) applies, the
court or the Government, as the case may be, competent
under
the Code of Civil Procedure, 1908 (5 of 1908), to
transfer any suit or proceeding from the district court in
which the later petition has been presented to the district
court in which the earlier petition is pending, shall exercise
its powers to transfer such later petition as if it had been
empowered so to do under the said Code.

11. Undisputedly, at present the application filed by the applicant

under Section 9 of Hindu Marriage Act is not pending before the

Trial Court. The appeal has already been preferred which was

dismissed in default and the application for restoration of the same is

pending. Although the application filed under Section 13(1) of Hindu

Marriage Act was prior in time but due to changed circumstances, the
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

provisions of Section 21-A of Hindu Marriage Act are no more

applicable. Accordingly, the contention that the application under

Section 24 of CPC is not maintainable is rejected as misconceived.

12. So far as the contention of the counsel for the respondent that

since the father of the applicant is a practicing lawyer, therefore, the

matter should not be transferred to Morena, is concerned, repeatedly,

the counsel for the respondent was directed to explain that what does

he mean by alleging that the father of the applicant is a practicing

lawyer? Every time, the counsel for the respondent submitted that he

does not wish to make any allegation that the father of the applicant

manipulates or pressurize the Court but submitted that since he is a

law knowing person, therefore, he is creating all sorts of trouble by

instituting various litigations against the respondent.

13. Considered the submissions made by the counsel for the

respondent.

14. Practicing on legal side cannot be said to be an impediment.

Furthermore, the respondent is being represented by his counsel. The

counsel for the respondent must have given him some legal advices,

therefore, it does not mean that merely because the father of the

applicant is a practicing lawyer, therefore, she is getting unnecessary

legal advice. Taking a legal advice is a right of the litigant and he/she

cannot be deprived of the same. In absence of any allegation that the

father of the applicant tries to pressurize the Court, this Court is of
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

the considered opinion that the allegation that the father of the

applicant is a practicing lawyer, therefore, the case should not be

transferred to Morena is misconceived and it is hereby rejected.

15. It is next contended by the counsel for the respondent that in

the year 2015, on the date when the charge sheet was to be filed for

offence under Section 498-A of IPC, the respondent and his mother

had gone to the Court where they were waylaid, mishandled and

physical force was used by Virendra Singh, Sarpanch and other

persons and, accordingly, the mother of the respondent had also

lodged a FIR. It is submitted by the counsel for he applicant that to

the best of his knowledge the police did not find any truth in such an

allegation and has filed closure report. The said submission made by

the counsel for the applicant was not refuted by the counsel for the

respondent on the ground that he has no knowledge about the same.

16. Be that as it may.

17. If the police after concluding the investigation has found that

the allegations are false, then on that ground only, the application is

liable to be dismissed. Furthermore, there is no allegation that

subsequently any threat or any offence was committed against the

respondent or his mother. Accordingly, this submission made by the

counsel for the respondent is hereby rejected.

18. Admittedly, the respondent is facing trial for offence under

Section 498-A of IPC and proceeding under Section 12 of Protection
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

of Women from Domestic Violence Act and both the cases are

pending in Morena. Further, the paternal house of the applicant is

Morena. It is the case of the respondent that he is serving in Noida.

Morena is nearer to Noida in comparison to Gwalior. Although the

distance between Morena and Gwalior is hardly 35 Kms. but this

Court cannot lose sight of the fact that the applicant may suffer

inconvenience in case if she is compelled to attend the proceedings

pending in the present case specifically when a decree for restitution

of conjugal rights has already been passed against the respondent.

19. So far as the submission regarding taking possession of the

house of the respondent at Gwalior is concerned, the respondent has

filed a copy of the proceedings of Parivar Paramarsh Kendra. In the

said proceedings, the applicant had alleged that since, the respondent

is not making payment of maintenance amount, therefore, She has

inducted tenants in the house in order to get some income.

20. Whether the applicant had rightly inducted the tenants or not is

not a subject matter of this proceeding. However, from the

proceedings of Parivar Paramarsh Kendra, it is clear that the

applicant has inducted the tenants, and it is not the case of the

respondent, that She is also residing in the same house. Be that

whatever it may be. Those proceedings are of the year 2015 and it is

not known that what is the present position regarding the house.

21. The counsel for the applicant has relied upon the judgments
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

passed by this Court in the case of Jyoti Bangde (Smt.) vs. Sanjay

Bangde reported in ILR [2010] MP 2425 and in the case of Saroj

Devi Kushwaha vs. Satendra Singh Kushwaha reported in 2010

(2) MPLJ 633.

22. This Court in the case of Saroj Devi Kushwaha (supra) has

held that where the wife is residing in Morena, then it is difficult for

her to attend the hearing before District Court at Gwalior. While

directing for transfer of the case, this Court has observed as under:

8. While analyzing the scope of section 24, Civil
Procedure Code and power of a Court to transfer a case,
the Supreme Court has observed in a case, reported as
2008 (4) MPLJ (SC) 9 2008 (3) SCC 659,
Kulwinder
Kaur vs. Kandi Friends Education Trust, that
convenience of the litigating parties at a particular place
of trial, having regard to the nature of the evidence and
issues raised by the parties must be considered and only
thereafter, the power of transfer of a Suit or Appeal
should be exercised by the Court, in the interest of justice.
For ready reference relevant observation of the Supreme
Court made in the case of Kulwinder Kaur v/s Kandi
Friends Education Trust, 2008 (4) MPLJ (SC) 9
2008(3) SCC 659 are quoted herein below:

22. Although the discretionary power of transfer of
cases cannot be imprisoned within a straitjacket 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 sections 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 courts.
They are balance of convenience or inconvenience to
the plaintiff or the 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 raised by the parties; reasonable
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HIGH COURT OF MADHYA PRADESH
M.C.C. No. 49 of 2017
Smt. Priyanka Vs. Deepak Singh

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.

9. Therefore looking to the alleged apprehension and
the alleged cruel behaviour of the husband and further in
view of the locational advantage of the applicant-wife, it
would be in the interest of justice to Transfer the
proceedings from Gwalior to Moreana. Consequently (Old
Suit No. 139-A/2008) New Suit No. 58-A/2009 pending
before the Family Court Gwalior is transferred to District
Court, Morena for its disposal on merits.

23. Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion that the Case

No.1003A/2014 filed by the respondent against the applicant for

grant of divorce is liable to be transferred from Gwalior to Morena

and, accordingly, it is transferred.

24. The Principal Judge, Family Court, Gwalior is directed to send

the record of Case No.1003A/2014 to the Principal Judge, Family

Court, Morena.

25. The application succeeds and is hereby allowed.

(G.S.Ahluwalia)
Judge
(alok)

ALOK KUMAR
2021.07.12 15:17:18 +05’30’

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