Mallika Jaiswal vs Aditya Jain
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Allahabad High Court

Mallika Jaiswal vs Aditya Jain on 22 August, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:144768
 
Court No. - 37
 
Case :- TRANSFER APPLICATION (CIVIL) No. - 447 of 2024
 
Applicant :- Mallika Jaiswal
 
Opposite Party :- Aditya Jain
 
Counsel for Applicant :- Manisha Chaturvedi,Vivek Chaturvedi
 
Counsel for Opposite Party :- Lavkush Kumar Shukla,Rajesh Kumar Gautam
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard learned counsel for the applicant and Mr. Rajesh Kumar Gautam, learned counsel for the opposite party/husband.

2. Brief facts of the case are that applicant is wife and opposite party is husband. Petition under Section 13 of Hindu Marriage Act, 1955 filed on behalf of the opposite party is pending in the Family Court, Agra.

3. The instant transfer application has been filed with the prayer to transfer the Divorce Petition No.774 of 2024 (Aditya Jain vs. Mallika Jaiswal) under Section 13 of the Hindu Marriage Act, 1955 from the court of Principal Judge, Family Court, Agra to Family Court District-Lucknow.

4. This Court entertained the matter on 30.05.2024 and stayed the further proceeding of the divorce petition no. 774 of 2024. The order dated 30.05.2024 is quoted as under:

"Heard learned counsel for the applicant and Sri Lavkush Kumar Shukla, learned counsel for opposite party. Perused the record.

This transfer application has been filed by the applicant seeking transfer of Divorce Petition bearing No. 774 of 2024 (Aditya Jain vs. Mallika Jaiswal) filed under Section 13-A of Hindu Marriage Act, 1955 from the Court of Principal Judge, Family Court, Agra to the Family Court, Lucknow.

It is submitted by learned counsel for the applicant that it is a matrimonial dispute between the parties. The applicant-wife is presently residing at Lucknow. She has filed an application under Section 125 Cr.P.C. claiming maintenance in the Court of Principal Judge, Family Court, Lucknow which was registered as Case No. 1612 of 2023. It is further submitted that opposite party has filed Divorce Petition on altogether incorrect facts in the Court of Principal Judge, Family Court, Agra with the intention to harass the applicant. It is further submitted that district Agra is much away from district Lucknow. The applicant being deserted wife of opposite party and having no source of income, is facing great hardship to attend the Court's proceedings before Family Court, Agra.

Matter requires consideration.

Sri Lavkush Kumar Shukla, Advocate has put in appearance on behalf of opposite party and filed counter affidavit which is taken on record.

Learned counsel for the applicant prays for and is granted a month's time to file rejoinder affidavit.

Put up as fresh on 15.7.2024.

Till the next date of listing, further proceedings of Divorce Petition bearing No.774 of 2024 (Aditya Jain vs. Mallika Jaiswal) filed under Section 13-A of Hindu Marriage Act, 1955 pending in the Court of Principal Judge, Family Court, Agra, shall remain stayed."

5. Learned counsel for the applicant submitted that proceeding of Case No.774 of 2024 (Aditya Jain Vs. Mallika Jaiswal) under Section 13 of the Hindu Marriage Act, 1955 initiated by the opposite party-husband should be transferred from the Family Court Agra to the competent court at Lucknow. He further placed reliance upon paragraph Nos. 15 and 17 of the affidavit filed in support of instant application.

6. Counter affidavit and rejoinder affidavit have been exchanged between the parties.

7. Mr. Rajesh Kumar Gautam, learned counsel for the opposite party submitted that opposite party/ husband has no objection to the prayer of transfer made by learned counsel for the applicant-wife.

8. I have considered the arguments advanced by the learned counsel for the parties and perused the record.

9. There is no dispute about the fact that proceeding under Section 13 of the Hindu Marriage Act, 1955 initiated by opposite party/ husband is pending in the Court of Principal Judge family Court, Agra.

10. In order to appreciate the controversy involved in the matter perusal of paragraph Nos. 15 and 17 of the affidavit filed in support of instant application will be relevant which are as under:

"15. That, the Applicant is a housewife and lives in Lucknow. with her father and mother who are of old age and currently only Applicant's mother is the sole bread earner of the family alsa the Applicant's father has recently undergone a surgery, and the Applicant is having no means of income or any source of earning and is also under going medication as she has been traumatised by the abused faced by her at her in-law's place, owing to which the Applicant nor her family can afford to travel to Agra and in order to follow up with the proceedings initiated U/s 13 HINDU MARRIAGE ACT bearing case no. 774 of 2024 before Family Court, Agra Applicant have to travel to Agra from Lucknow which is at distance of about 350 kms and she has no means of accommodation in Agra, which seriously will affect the health of Applicant. It is pertinent to mention that the applicant having no means of income is not able to fulfil her needs of her medication and personal expenses and so for the same, a case U/s 125 CrPC bearing no. 1612/2023 Mallika Jaiswal Vs. Aditya Jain has been filled and is pending before the Family Court, Lucknow.

17. That, the opposite party is not paying a single penny to the Applicant and she is totally dependent upon her mother for her daily expenses including her medical and travel needs. She can neither travel of her own nor she can arrange for her medicine and in such circumstances, she cannot afford to travel to Agra for participating in the court case or else the Applicant shall suffer an irreparable loss."

11. After perusal of the paragraphs Nos. 15 & 17 of the affidavit filed in support of the instant application as quoted above this Court found that the prayer of the applicant/wife for transfer of the case from Agra to Lucknow is genuine.

12. Apex Court in the Case reported in (2016) 14 Supreme Court Cases 356 (Vaishali Shridhar Jagtap Vs. Shridhar Vishwanath Jagtap) has transferred the proceeding of divorce petition filed by husband to the place where wife reside. Apex Court Judgment rendered in Vaishali Shridhar Jagtap (Supra) will be relevant for perusal, which are as under:-

"1. Leave granted.

2. The appellant is the wife of the respondent. She is aggrieved since the High Court of Bombay declined to transfer the case, filed in Mumbai by the respondent for divorce, to Barshi where the appellant resides-parental home. The Review Petition was also dismissed. The High Court has taken the view that the appellant does not have to travel on all days for defending the case, and on the days of her travel, she will be paid a sum of rupees one thousand five hundred.

3. According to the appellant, her mother is aged and it is difficult for her mother to accompany the appellant for her travel to Mumbai. It is also stated that there are three criminal cases - one for maintenance, the second under the Prevention of Domestic Violence Act, 2005 and the third under Section 498A of The Indian Penal Code, 1860 and other related provisions, pending at Barshi, and one on the civil side for restitution.

4. The learned Counsel appearing for the respondent has vehemently opposed the prayer for transfer. It was submitted that the appellant's mother is only 60 years old and that she has two brothers. It is also pointed out that majority of the witnesses are from Mumbai and it would be difficult for them to travel to Barshi, and, in any case, the attempt is to harass the respondent-husband.

5. Admittedly, the distance between Mumbai and Barshi is around 400 kilometres. Four cases between the parties are pending at Barshi. Apparently, the comparative hardship is more to the appellant-wife. This aspect of the matter, unfortunately, the High Court has missed to take note of.

6. In view of the above, the impugned orders are set aside and the M.J.Petition No. 2287 of 2013 filed by the respondent-husband in Family Court Bandra, Bombay will stand transferred to the court of competent jurisdiction at Barshi.

7. The appeals are allowed as above. There shall be no orders as to costs."

13. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of Case No. 774 of 2024 (Aditya Jain Vs. Mallika Jaiswal) under Section 13 of the Hindu Marriage Act 1955 pending in the court of Principal Judge Family Court, Agra is transferred to Family Court District-Lucknow. The Family Court, Agra is directed to transmit the record of the case to family Court Lucknow forthwith. The family Court Lucknow is directed to decide the aforementioned proceeding of theCase No.774 of 2024 (Aditya Jain Vs. Mallika Jaiswal) under Section 13 of the Hindu Marriage Act, 1955 in accordance with law expeditiously preferably within a period of six months from the date of production of certified copy of this order before him.

Order Date :- 22.8.2025

PS*/Vandana