MISCELLANEOUS JURISDICTION CASE No.3943 OF 2009 In the matter of an application under section 24 of the Code of Civil Procedure, 1908 SMIRTI SINGH @ SMRITI SINGH WIFE OF ANUPAM RANJAN, DAUGHTER OF RAJESH KUMAR SINGH, RESIDENT OF VILLAGE + P.O.- PHULOUT, P.S. ALAM NAGAR, DISTRICT- MADHEPURA VERSUS ANUPAM RANJAN, SON OF VISHWAMBHAR SHARMA, RESIDENT OF 114, ANANDPURI, P.S. KRISHNAPUR, DISTRICT- PATNA -------- FOR THE PETITIONER : MR. DHANANJAY KUMAR, ADVOCATE FOR THE OPP. PARTY : MR. SATYENDRA NARAYAN SINGH, ADVOCATE ********** P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.SINHA, J. Heard learned counsels for the petitioner and the opposite party. 2. This is an application of the wife for transfer of Divorce Case vide Matrimonial Case No. 94 of 2009 filed by the opposite party-husband pending before the Principal Judge, Family Court, Patna to the Principal Judge, Family Court, Madhepura. 3. The short relevant facts are that admittedly the marriage of the petitioner and the opposite party was solemnized on 5th December, 2005 from the Patna 2 residence where the father of the petitioner was residing along with his other children. The further case of the petitioner is that although at the time of marriage the gift and dowry as per the financial capacity of her father was given to the opposite party, however after some time of the marriage, the husband-opposite party and his family members started pressurizing the petitioner for bringing more and more dowry which could not be fulfilled on account of the poor financial condition of the father of the petitioner who was a middle class farmer burdened with maintaining the family with his meager agricultural income. Further case of the petitioner is that the opposite party, son of an Advocate at Patna, continued to demand and thereafter started torturing the petitioner for more dowry and when the torture reached to such an extent that it became unbearable to live in her matrimonial home she was compelled to go to her parents place in the district of Madhepura where the father and other family members are residing. The further case of the petitioner is that on account of torture and demand of dowry petitioner filed a complaint case under section 498A of the Indian Penal Code vide Complaint Case No. 1411 of 2009 in the Court of Chief Judicial Magistrate, Madhepura and also filed an application under section 125 of the Code of Criminal Procedure vide Miscellaneous Case No. 115 of 2009 3 pending in the Family Court at Madhepura claiming maintenance from the opposite party. Petitioner on being learnt about the filing of the divorce case in question vide Matrimonial Case No. 94 of 2009 which has been filed by the opposite party at Patna, got inspected the records of the said divorce case and on inspection it was detected that the opposite party had earlier also filed a divorce case vide Divorce Case No. 628 of 2007 which was dismissed for non-prosecution on 23.09.2008. The application for restoration of the same vide Miscellaneous Case No. 19 of 2008 was dismissed. Thereafter the opposite party filed the present divorce case. 4. Petitioner has sought for transfer of the Matrimonial Case No. 94 of 2009 from the Family Court at Patna to the Family Court at Madhepura basically on the ground of paucity of fund as she has no source of income and secondly the father of the petitioner is a poor farmer having a meager income as also the fact that there is no one at Patna as such petitioner can not stay alone and contest the divorce case. It has also been stated that it is not possible for the petitioner to come from Madhepura to Patna to attend the case alone, and as such, the petitioner has sought for transfer of the aforesaid divorce case. 5. The opposite party appeared and filed a counter affidavit stating basically to the effect that the father of the 4 petitioner has got a house at Patna where the petitioner can stay and secondly that the opposite party can also pay for her travel expenses from Madhepura to Patna. Apart from the above, the transfer application is resisted also on the ground that the opposite party has got apprehension of danger to his life at the hands of the brother of the petitioner who is having close association with anti-social elements at Madhepura. The allegation of demand and torture has been denied. In the counter affidavit copy of the medical prescriptions have been annexed to show that the opposite party is suffering from some problem in his vocal cord for which he is taking treatment at Patna. 6. Learned counsel for the petitioner submits that admittedly the petitioner has no independent source of income and also not in position to stay at Patna coming alone from Madhepura for contesting the case. It is further submitted that the petitioner has filed two cases at Madhepura against the opposite party one for her maintenance and the other for his prosecution for offence committed by him punishable under section 498A of the Indian Penal Code. Therefore, in the interest of justice, the divorce case in question filed by the opposite party at Patna deserves to be transferred to Madhepura so that all the cases pending between the parties could be heard and disposed of at Madhepura. 5 7. Learned counsel for the opposite party no.2, on the other hand, submits that the petitioner's father has got a house at Patna from where her marriage was solemnized in the year 2005 and the petitioner can still come and stay there and contest the case. So far as the financial constraint is concerned, learned counsel submits that the opposite party is prepared to meet her travel expenses. Besides the above, as stated in the counter affidavit, learned counsel submits that the opposite party has got sincere apprehension of danger to his life at Madhepura at the hands of the anti-social associates of the brother of the petitioner. In this context, learned counsel submits that the divorce case may be transferred to any other Court beyond the Madhepura region where both parties can appear and contest the case. 8. Considering the rival submissions of the parties and their respective pleadings, it appears that admittedly the marriage between the parties was solemnized on 5th December, 2005 at Patna. The opposite party, however, filed a divorce case vide Matrimonial Case No. 628 of 2007 which was dismissed for default on 23.09.2008. The miscellaneous case filed for restoration of the aforesaid matrimonial case vide Misc. Case No. 19 of 2008 was also dismissed as stated in paragraph 23 of the divorce petition vide Annexure-1. Thereafter the present divorce case vide 6 Matrimonial Case No. 94 of 2009 was filed on 10th February, 2009 at Patna. It is also an admitted position between the parties that the Maintenance Case vide Misc. Case No. 115 of 2009 and the Complaint Case No. 1411 of 2009 under section 498A of the Indian Penal Code have been filed by the petitioner against the opposite party at Madhepura in the Court of Family Court, Madhepura and in the Court of Chief Judicial Magistrate, Madhepura respectively. It further appears that the petitioner has expressed her inability in contesting the case at Patna on the ground that she has no income to bear the expenses of coming from Madhepura to Patna and also expressed her inability in coming alone and at Patna alone. The opposite party on the other hand has primarily opposed the transfer application on the ground that there is apprehension of danger to his life at Madhepura at the hands of the anti- social associates of the brother of the petitioner. Moreover, nothing is on the record to substantiate the above assertion of the opposite party with regard to his apprehension of danger to his life at Madhepura. It has not been denied that the petitioner has no independent source of income and she is residing with her parents at Madheura. The opposite party has further submitted in course of hearing that if need be the travel expenses of the petitioner for attending the Court at Patna would be borne 7 by him. In the matter of transfer of divorce case from one place to another place, the point is well settled that the paramount consideration is the convenience of the wife. Reference may be made to the decision of the Apex Court in the case of Sunita Singh Vs. Kumar Sanjay & Anr., reported in (2001)10 SCC, 41 as also the decision of this Court in the case of Kumari Archana @ Rina Vs. Ajit Ranjan as reported in 2010 (4) PLJR 848. There are good number of similar decisions; all need not be referred. In the instant case admittedly two proceedings are already pending at Madhepura filed by the petitioner in which the opposite party is required to appear and contest the case, if so advised. The submission on behalf of the opposite party that the travel expenses could be borne by him is not ipso facto sufficient to meet the inconveniences which the petitioner will have to face while coming from Madhepura to Patna and stay alone which could not be said to be justified nor it would be justified to accept the submission that the case itself be transferred to a third place. The submission is equally unjustified for the reason that transferring a case to a third place shall not mitigate the financial hardship as well as the other inconveniences of the petitioner as discussed above, rather it will become more inconvenient for the petitioner to go to a totally new place and stay alone. The decision cited on behalf of the 8 opposite party in the case of Harshad Chiman Lal Modi reported in 2005 AIR SCW 6533 is with respect to return of plaint for presenting in the proper Court having jurisdiction. The decision in the case of Shweta Bhardwaj reported in 2002(1) P.L.J.R. 274 and in the case of Pratibha Khwmka reported in 2005 AIR SCW 3200 the orders are on its own facts and not similar to the facts of the present case. The decision in the case of Y.A. Ajit Vs. Sofana Ajit reported in 2007 AIR SCW 5703 is on different set of facts and as such the aforesaid decision cited on behalf of the opposite party is not applicable in the facts of the present case, and as such the same are of no help to the petitioner. 9. For the reasons discussed above, I find it expedient in the interest of justice that the prayer of the petitioner for transfer of the divorce case vide Matrimonial Case No. 94 of 2009 pending in the Family Court at Patna to the Family Court at Madhepura deserves to be allowed. Accordingly, it is directed that let the records of Matrimonial Case No. 94 of 2009 pending before the Principal Judge, Family Court, Patna be transferred to the Principal Judge, Family Court, Madhepura forthwith. 10. Both the parties are directed to appear before the Principal Judge, Family Court, Madhepura on 16th May, 2011 for taking part in the proceeding of the case. 9 11. The application accordingly stands allowed. No costs. 12. Let the order be communicated to the Principal Judge, Family Court, Patna in connection with Matrimonial Case No. 94 of 2009 as also to the Principal Judge, Family Court, Madhepura through FAX on the cost being deposited by the petitioner. Patna High Court The 22nd of April, 2011 N.A.F.R/Manish ( Shailesh Kumar Sinha,J.)