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Smt. Priyankla Arya vs Abhishek Arya on 20 August, 2018

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

Case No.Parties Name MCC No. 1258 of 2018.
Smt. Priyanka Arya
Vs.
Abhishek Arya
Date of Judgment 20/08/18
Bench Constituted Single Bench.

Judgment delivered by Justice Sujoy Paul
Whether approved for reporting No.
Name of counsels for parties Applicant : Shri Chandrahas Dubey, Adv.

Respondent: Shri Kunal Thakre, Adv.
Law laid down –
Significant paragraph numbers –

(ORDER)
(20.08.2018)

This is an application under Section 24 of the Civil Procedure Code seeking
transfer of Case No. RCS No.272-A/2018 from Bhopal to Indore. The applicant/
wife contends that the application under section 125 Cr.P.C is filed by her at
Indore. The applicant’s aged father is critically ill. She has to take care of her
father and it is difficult for her to move from Indore to Bhopal to attend the
proceedings of the said case.

(2) Shri Chandrahas Dubey, learned counsel for the applicant placed reliance
on Neelam Kanwar Vs. Devinder Singh Kanwar (2000) 10 SCC-589, Simi
Mehrotra Vs. Anil Mehrotra-(2002(10) SCC-70, Paramjeet Kaur Vs.
Dharampal Singh-(2007(2) MPHT-344, Shalini Amit Mithrani Vs. Amit
Mithrani- Laws(SC) 2008(11) 43, Pritam Ashok Sadaphule and others Vs. State
of Maharashtra and another- (2015) 11 SCC-769 and Bhartiben Ravibhai Rav
Vs. Ravibhai Govindbhai Rav- (2017) 6 SCC-785 and contended that
convenience of wife is the paramount consideration for deciding the question of

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MCC.No.1258/18.

transfer of a matrimonial matter. He further submits that one brother of the
applicant is residing abroad and the other is living separately. The applicant is
not getting any help from them.

(3) Per contra, Shri Kunal Thakre, counsel for the respondent submits that
applicant and respondent were married on 17.04.2016 at Bhopal. The
respondent used to work at Pune. Hence, initially they resided at Pune. The
documents are filed as Annexure R/5 and R/6. The applicant was in
employment. During her employment, she used to visit various cities
including Hyderabad, Bangaluru, Pune, Delhi, Indore etc. She is a qualified
woman who can travel from Indore to Bhopal which is very well connected.
There is no allegation of threat by the present respondent. The applicant is
residing in a joint family and she has two real brothers. He further submits
that respondent’s father is critically ill. He is suffering from cancer, undergone
operation of angioplasty, removal of bladder and prostrate gland. The mother
of the respondent is also suffering from critical ailments like hypertension and
chronic arthritis. The respondent is the only bred winner and the person to
take care of his aged parents. Thus in the peculiar facts and circumstances of
this case, the application may be dismissed. He placed reliance on Amandeep
Goyal Vs. Yogesh Rani-AIR 2016 SC-4833 and Kirti Sharma Vs. Devesh
Sharma-2017(3) MPLJ-434.

(4) No other point is pressed by learned counsel for the parties.

(5) I have heard the counsel for the parties at length and perused the record.

(6) The Apex Court laid down parameters/factors to be taken into account
for transfer of a suit/appeal or other proceedings in the case reported in 2008
(3) SCC 659, [Kulwinder Kaur vs. Kandi Friends Education Trust and
others]. It was held that: (i) balance of convenience or inconvenience to the
plaintiff or the defendant or witnesses; (ii) convenience or inconvenience of a
particular place of trial having regard to the nature of evidence on the points
involved in the suit; (iii) issues raised by the parties; (iv) reasonable
apprehension in the mind of the litigant that he might not get justice in the
court in which the suit is pending; (v) important questions of law involved or a
considerable section of public interested in the litigation and (vi) “interest of

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MCC.No.1258/18.

justice” demanding for transfer of case, etc. are certain instances which are
germane in considering the question of transfer. These points are held to be
the relevant factors with the observation that these are merely illustrative in
nature and not exhaustive.

(7) The learned counsel for the applicant placed reliance on certain
judgments mentioned hereinabove, wherein trial was directed to be
transferred. In those cases, considering the inconvenience of the wife, the trial
was directed to be transferred. The argument of learned counsel for the
applicant is that inconvenience of wife is the paramount consideration.
However, a plain reading of these judgments shows that there is no such law
laid down as a thumb rule that in every case the suit must be transferred
considering the inconvenience of the wife. In the peculiar fact situation of a
case, the direction to transfer the suit may be passed. Pertinently, in the case of
Bhartiben Ravibhai Rav (supra) apart from divorce petition, three other
proceedings were pending between the parties which were filed by the wife at
Dungarpur (Rajasthan). In the fact situation of that case, the Family Court,
Ahmedabad was directed to transmit the record to District Judge, Dungarpur.
In the case of Pritam Ashok Sadaphule (supra) the proceedings were pending
on similar allegation at Dwarka (Delhi) and at Vikroli (East Mumbai). Since
the said two proceedings were same and adjudication is based on similar
allegations, the Apex Court directed that the two proceedings be conducted by
the same Judge in Delhi. Similarly, in the cases of Shalini Amit Mithrani
(supra) and Paramjeet Kaur (supra) the transfer of suit was based on peculiar
facts situation of the said cases. In the case of Paramjeet Kaur (supra) the
wife had a son of 11 months and considering the age of child, the transfer was
ordered. Similarly, in the case of Neelam Kanwar (supra), the first
respondent/husband had a permanent residence at Mumbai and yet opposing
the petition for transfer to Mumbai, which was not accepted. No straight
jacket formula is laid down in these cases to transfer the matrimonial matters
as per the wish of the wife.

(8) In 2005 (11) SCC 446, [Gargi Konar vs. Jagjeet Singh], the Apex
Court held as under:

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MCC.No.1258/18.

“2.The only ground made out in the transfer petition by the petitioner
wife is that she is a helpless woman fully dependent upon her father and
that her financial capacity is not such so that she can contest the
proceedings in Bhatinda in the State of Punjab.

3. In our view, this is not a ground for transfer at all. The respondent can
be directed to pay for her and her companions, to-and-fro and stay,
expenses on every occasion on which she is required to travel. The
Additional Civil Judge before whom the case is pending is directed to
quantify the amount and to ensure that the same is paid to her on every
occasion that she is required to remain present in the court. With these
directions the transfer petition stands dismissed.”

[Emphasis Supplied]

(9) In the present case, the distance between Indore and Bhopal is only 190
KM. Both the cities are very well connected by road and by train. The
applicant/wife was admittedly in service at Pune. She is an educated lady.
There is no allegation of threat etc. on the part of the husband. The husband
has given various reasons because of which it is difficult for him to contest the
litigation outside Bhopal. His parents are suffering from serious ailments and
he being the only male member and bread winner has to take care of his old
parents.

(10) This Court in 2017 (3) MPLJ 434, [Kirti Sharma vs. Devesh Sharma],
rejected the prayer of wife to transfer a matrimonial case from Gwalior to
Bina. This Court held that both the cities aforesaid are well connected by train
facility. Interest of justice would be met if financial difficulty of the wife is
taken care of. In view of aforesaid analysis, in my view no case is made out
for transferring the matrimonial case as per the prayer of the applicant/wife. If
applicant prefers an application for grant of financial assistance to attend the
hearing of the matter before the Court below at Bhopal, the Court below shall
fix an appropriate amount for all those hearing which are being attended by
the wife at Bhopal. The said expenses shall be paid to the wife by the present
respondent/husband.

(11) With aforesaid observation, MCC is dismissed.

(Sujoy Paul)
Judge

MKL/s@if

Digitally signed by SAIFAN KHAN
Date: 2018.08.20 15:09:41 +05’30’
IN THE HIGH COURT OF MADHYA PRADESH JABALPUR,
PRINCIPAL SEAT AT JABALPUR

M.C.C. No.1258/2018

Smt. Priyanka Arya

Vs.

Abhishek Arya

Order posted for: 20.08.2018.

(SUJOY PAUL)
JUDGE

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