Surbhi Shrivastava vs Shri Ankit Shrivastava
2023 Latest Caselaw 2921 MP

                                                                 1

                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                         BEFORE
                                         HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                                  ON THE 17 th OF FEBRUARY, 2023
                                                 MISC. CIVIL CASE No. 3142 of 2022

                               BETWEEN:-
                               SURBHI SHRIVASTAVA W/O ANKIT SHRIVASTAVA D/O
                               SHRI MAHESH KUMAR SHRIVASTAVA, AGED ABOUT 30
                               YEARS, OCCUPATION: UNEMPLOYED R/O GALI NO. 03,
                               SHANKAR COLONY, VIDISHA (MADHYA PRADESH)

                                                                                              .....APPLICANT
                               (BY SHRI ANUBHAV JAIN - ADVOCATE)

                               AND
                               SHRI ANKIT SHRIVASTAVA S/O SHRI RAVINDRA
                               KUMAR SHRIVASTAVA, AGED ABOUT 30 YEARS,
                               OCCUPATION: (SR. ASSISTNAT LOCO PILO) R/O HOUSE
                               NO.  H-222,   GOVERNMENT      QUARTER     KOTRA
                               SULTANABAD BHOPAL (MADHYA PRADESH)

                                                                                          .....RESPONDENTS
                               (BY MS. POOJA MISHRA - ADVOCATE)

                                     This application coming on for admission this day, the court passed the

                           following:
                                                                  ORDER

Petitioner/wife has filed this application seeking transfer of RCS HM No. 1277/2022 pending before the Family Court, Bhopal to Family Court, Vidisha.

Counsel for the petitioner contends that the respondent/husband has filed a petition under section 13 of Hindu Marriage Act before the Family Court, Bhopal seeking dissolution of marriage dated 29/04/2018. It is contended by the counsel that the present petitioner filed an application under section 125 of Cr.P.C. against the respondent/husband and on the said application, an order Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 2/23/2023 3:08:16 PM

dated 6/08/2022 was passed by which the respondent/husband was directed to pay Rs. 10,000/- as maintenance to the petitioner and Rs. 8,000/- as maintenance to petitioner no.2. It is contended by the counsel that the said order was ex-parte and therefore, as the said order was not complied with, the petitioner has instituted proceedings under section 125 (3) of Cr.P.C. vide MJC No. 158/2022 which is pending in the Family Court, Vidisha. It is also contended by the counsel that a case has also been registered against the respondent/husband under section 498-A of IPC and the same is also pending in Vidisha. Counsel also contends that another case under the provisions of Domestic Violence Act is also pending in JMFC Court, Vidisha. It is also

contended by the counsel that the respondent/husband has also filed a case vide MJCR No. 08/2023 which is pending in the Family Court, Vidisha therefore, submits that as the aforesaid all cases are pending in Family Court, Vidisha, the petition filed by the respondent/husband under section 13 of Hindu Marriage Act be transferred to Vidisha.

It is also contended by the counsel that Vidisha is at a distance of 53 kms from Bhopal and appearance at Vidisha on scheduled date of hearing would cause immense hardship as well as prejudice to the petitioner. Counsel also contends that the appearance through Video Conferencing is not permissible in view of section 11 of the Family Courts Act. It is also contended by the counsel that the scope of section 11 of the Family Court has been dealt with by the Apex Court in the case of Santhini Vs. Vijaya Venketesh, (2018) 1 SCC

1. It is contended by the counsel that in transfer petition, Video Conferencing cannot be ordered and the judgment of the Apex Court in Santhini Vs. Vijaya Venketesh (supra) has been followed by the High Court of Kerala in Deepa

Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 2/23/2023 3:08:16 PM

S. Vs. Suresh P. passed in Tr. P (C) Nos 291 and 269 of 2022 and also by the High Court of Allahabad in Sakshi Agrawal Vs. Ashutosh Agrawal passed in Transfer Application (civil) No. 185/2020.

Counsel for the petitioner also contends that the convenience of the wife is a factor which is required to be considered by the court while dealing with an application under section 24 of the Hindu Marriage Act. Counsel has also placed reliance on the decision of Supreme Court in N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha, 2022 SCC Online SC 1199. Counsel has also placed reliance on Manjula Singh Chouhan Vs. Vishal Singh Chouhan passed in MCC No. 137/2016 by this Court and by the Apex Court as well. Accordingly, counsel submits that the case filed by the respondent/husband be transferred to Family Court, Vidisha.

Per contra, counsel for the respondent submits that in the present case, application filed by the petitioner/wife deserves to be dismissed firstly on the count that the petitioner on her own volition left the matrimonial house on 13/06/2021 without any cause and also furnished an undertaking which has been brought on record alongwith the reply filed by the respondent. It is further contention of the counsel that respondent/husband is working as Senior Assistant Loco Pilot, Bhopal and the nature of job does not permit the respondent to go out of Bhopal. Moreover, it is also contended by the counsel

that Vidisha is hardly at a distance of 50 kms and the respondent/husband is willing to bear the expenses which are required securing appearance of the petitioner/wife at Bhopal. It is also contended by the counsel that leniency shown by the different courts with the transfer petition filed by the petitioner has been taken note of by the Apex Court and in the present case as well without there being any sufficient ground, this application for transfer has been filed by Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 2/23/2023 3:08:16 PM

the petitioner/wife.

It is contended by the counsel that the petitioner/wife can enter appearance through video conferencing. It is also contended by the counsel that the Apex court in a recent decision in Anjali Brahmawar Chauhan Vs. Navin Chauhan, 2021 SCC Online SC 38 while appreciating the decision of Santhini Vs. Vijaya Venketesh (supra) is still permitted the parties to entered appearance through video conferencing during pandemic period.

Counsel for the respondent has submitted that the Apex Court in the case of Indian Overseas Bank Vs. Chemical Construction Company, (1979) 4 SCC 358 has held that when a transfer is sought under section 24 of the CPC, the court should not lightly change that Forum and compel the parties to go another court as the same would increase an inconvenience and also expense of prosecuting the case. The Apex Court also held that a mere balance of convenience in favour of the proceedings in another albeit a material consideration, may not always be a sure criterion justifying transfer. Counsel has also placed reliance on the order passed by this Court in M.C.C. No. 1308/2020 (Shweta Singh Vs. Rewanchal Singh) and M.C.C. No. 588/2020 (Neeta Jain Vs. Rajiv Jain) and has submitted that the present application deserves to be dismissed.

Heard the rival submissions and perused the record. In the present case, the petitioner has contended that distance between Vidisha and Bhopal is 53 kms. The other cases which are filed under section 125 (3) of Cr.P.C., under section 498-A of IPC and a case under the Domestic Violence Act, instituted at the behest of the petitioner/wife are pending in the court at Vidisha. According to the petitioner's own showing the

Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 2/23/2023 3:08:16 PM

respondent/husband has already contested all the aforesaid cases instituted at the behest of the petitioner/wife thus, according to petitioner's own showing the respondent/husband is required to appear in four different cases, out of which three have been instituted by the petitioner/wife under the aforesaid provisions thus, the respondent is already contesting the aforesaid cases which have been filed at the instance of petitioner/wife. Undisputedly, the respondent/husband is working as Senior Assistant Loco Pilot and even deputed on night duties as well therefore, in the present case, not only the convenience of the wife but also the convenience of the husband is required to be taken into consideration.

The Apex Court in the decision of Anindita Das Vs. Srijit Das, (2006) 9 SCC 197 has taken note of fact that the leniency which has been shown by the courts to the women in the cases of transfer has been misused. The Apex Court has held in paragraph 3 as under:-

3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. On an average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women.

The petitioner does not dispute that the respondent is working as Senior Assistant Loco Pilot with Railways and there is already an order by which the maintenance has been granted to the present petitioner in the proceedings instituted by the petitioner/wife under section 125 of Cr.P.C. The respondent has already expressed that he is willing to bear the expenses which are required Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 2/23/2023 3:08:16 PM

securing appearance of the petitioner in RCS HM No. 1277/2022 pending in the Family Court, Bhopal. The respondent/husband has stated that the petitioner/wife on her own volition left the matrimonial house on 13/06/2021. The statement of the petitioner has been brought on record alongwith the return which has not been controverted by the petitioner.

In this view of the matter, this Court is not inclined to transfer case no. RCS HM No. 1277/2022 from Family Court, Bhopal to Family Court, Vidisha and accordingly, the present petition stands dismissed. However, the Family Court, Bhopal is directed to ascertain and order payment of the expenses which are required to be paid by the respondent/husband to the petitioner/wife for securing her presence on the scheduled date of hearing.

(MANINDER S. BHATTI) JUDGE navin

Signature Not Verified Signed by: NAVEEN NAGDEVE Signing time: 2/23/2023 3:08:16 PM