Smt. Gunjan vs Shashank
2025 Latest Caselaw 9169 ALL

Allahabad High Court

Smt. Gunjan vs Shashank on 26 August, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:147836
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
TRANSFER APPLICATION (CIVIL) No. - 729 of 2023   
 
   Smt. Gunjan    
 
  .....Applicant(s)   
 
 Versus  
 
   Shashank    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Puneet Bhadauria   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
Rajesh Kumar Gautam, Sukesh Kumar   
 
     
 
 Court No. - 37
 
   
 
 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. A petition under Section 13 of Hindu Marriage Act, 1955 filed on behalf of the opposite party/husband is pending in the Family Court, Firozabad.

3. The instant transfer application has been filed with the prayer to transfer the H.M.A. Case No.555 of 2019 (Shashank Vs. Smt. Gunjan) under Section 13 of the Hindu Marriage Act, 1955 from the court of Principal Judge, Family Court, Firozabad to Family Court District-Etawah.

4. This Court entertained the matter on 18.09.2023 and stayed the further proceeding of the Case. The order dated 18.09.2023 is quoted as under:

"1. Heard learned counsel for the applicant.

2. The present application has been filed by the applicant-wife seeking transfer of Case No.555 of 2019 (Shashank Vs. Smt. Gunjan), under Section 13(1)(i) of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Firozabad to court of Principal Judge, Family Court, Etawah.

3. It is submitted by the learned counsel for the applicant that two proceedings; one under Section 125 of Cr.P.C. and another under Section 12 of Domestic Violence Act have been instituted by the applicant against the opposite party at Etawah whereas opposite party has instituted the divorce petition at District, Firozabad. It is submitted that the applicant is residing with her aged parents at Etawah and applicant has no source of income to meet the litigation expenses and other expenses which is to be incurred in travelling from Etawah to Firozabad to contest the case instituted by opposite party at Firozabad on each and every date fixed in the matter. It is further submitted that no amount towards maintenance is being paid to the applicant by the opposite party. Thus, the submission is that if the case is allowed to be proceeded at Firozabad, applicant would suffer serious prejudice.

4. Matter requires consideration.

5. Issue notice to respondent/opposite party returnable at an early date.

6. Steps by both modes i.e. ordinary post as well as R.P./A.D. be taken for service of notice upon respondent/opposite party within ten days.

7. Opposite party is granted four weeks time to file counter affidavit.

8. List on 17.11.2023.

9. In case steps are not taken within the aforesaid period, the matter shall be listed under Chapter XII Rule 4 of the Allahabad High Court Rules immediately after expiry of ten days.

10. Until further orders of this Court, further proceeding of Case No.555 of 2019 (Shashank Vs. Smt. Gunjan), under Section 13(1)(i) of Hindu Marriage Act pending in the court of Principal Judge, Family Court, Firozabad shall remain stayed."

5. Learned counsel for the applicant submitted that proceeding of Case No.555 of 2019 (Shashank Vs. Smt. Gunjan) under Section 13 of the Hindu Marriage Act, 1955 initiated by the opposite party-husband should be transferred from the Family Court Firozabad to the competent court at Etawah. He further placed reliance upon paragraph Nos. 5, 6, 10, 11, 12, 13 & 14 of the affidavit filed in support of instant application. He further submitted that cases are pending between the parties at Etahwah.

6. Counter affidavit has been filed on behalf of opposite party/husband.

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 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 at family Court, Firozabad.

10. In order to appreciate the controversy involved in the matter perusal of paragraph Nos. 5, 6, 10, 11, 12, 13 & 14 of the affidavit filed in support of instant application will be relevant which are as under:

"5. That applicant has also filed an application for maintenance under section 125 Cr.P.C. which is still pending before the Principal Judge Family Court, Etawah. True copy of application under section 125 Cr.P.C. is being filed herewith and is marked as ANNEXURE NO.- 2 to this affidavit.

6. That applicant has also filed a complaint under section 12 of Protection of Women from Domestic violencee Act, against the respondents and his other family members. True copy of complaint under section 12 of Domestic Violence Act is being filed herewith and is marked as ANNEXURE NO.- 3 to this affidavit.

10. That for the applicant, being a lady, is very hard to attend each and every date at District Firozabad, from District Etawah, which is about 87 K.M. far away from District Etawah.

11. That applicant is fully dependent upon her parents, who are senior citizens and suffering from so many old age ailments and at the verge of their last time as such it is very hard for the applicant to attend each and every date regularly at District Court Firozabad.

12. That besides above, the applicant has no independent source of income, opposite party has refused to maintain her and he does not give single penny to the defendant/applicant to maintain her and on theother hand plaintiff opposite party is getting the salary of Rs. 40,000/- per month and indisputable, he is working as marketing manager in a private company and more so opposite party is also carrying on the business of Auto Vehicle from where he at least earns Rs. 40,000/- monthly as such he is getting earning of Rs. 80,000/- per month.

13. That the defendant/applicant is a poor lady and it is very hard to attend the proceeding far away about 87 K.M. on each and every date and more-so, plaintiff/opposite party may commit any offence at any point of time, as such her life is also in danger at District Firozabad and as such it would be proper and fit to transfer the proceeding at District Etawah, from Firozabad.

14. That as per section 21- A of Hindu Marriage Act, earlier litigation on the behest of wife is pending at District Etawah, then in the interest of justice it would be proper to hear all cases under the territory of District Court Etawah."

11. After perusal of the paragraphs Nos. 5, 6, 10, 11, 12, 13 & 14 of the affidavit filed in support of the instant transfer application as quoted above this Court has found that the prayer of the applicant/wife for transfer the case from Firozabad to Etawah is genuine coupled with the fact that opposite party/husband has no objection to the prayer of transfer made by applicant/wife.

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.555 of 2019 (Shashank Vs. Smt. Gunjan) under Section 13 of the Hindu Marriage Act, 1955 pending in the court of Principal Judge Family Court, Firozabad is transferred to Family Court District-Etawah. The Family Court, Firozabad is directed to transmit the record of the case to the family Court Etawah forthwith. The family Court Etawah is directed to decide the aforementioned proceeding of the Case No.555 of 2019 (Shashank Vs. Smt. Gunjan) 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.

(Chandra Kumar Rai,J.)

August 26, 2025

PS*/Vandana