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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 Singh21A. 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 Singhapprehension 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’
