IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1828 of 2009 BABY BINITA DEVI Versus ARVIND KUMAR SINGH ----------- For the petitioner:M/S Naresh Dikshit,Advocate Kunal Tiwary,Advocate For the Opp.party :Mr.Jitendra Kr.Singh,Sr.Advocate ---- 6. 3.8.2009 Heard learned counsel for the petitioner and learned counsel for the opposite party. The petitioner wife seeks transfer of Matrimonial Case No. 4 of 2008 pending in the court of Principal Judge, Family Court, Sasaram in the District of Rohtas to the court of Principal Judge, Family Court, Bhojpur at Ara. The said matrimonial case has been filed under Section 13 of the Hindu Marriage Act for grant of decree of divorce by the opposite party husband. It is stated that in the said matter the petitioner has already filed the written statement. It is also the admitted position that the father of the opposite party has already been examined in chief and the matter is pending for his cross examination. The case of the petitioner is that she has filed a Miscellaneous Case No.102 of 2008 before the Family Court, Ara against the opposite party on 21.6.2008 under Section 125 Cr.P.C. for maintenance which is pending there. The father of the petitioner had also filed a complaint case in 2 the court of Chief Judicial Magistrate, Bhojpur at Ara which was forwarded under Section 156(3) Cr.P.C. to the police for institution of a police case and, accordingly, Piro P.S.case no. 76 of 2008 against the opposite party under Sections 498A, 406, 379/34 IPC and 3/4 of the Dowry Prohibition Act was registered. It is further alleged that the opposite party and his family members are putting pressure on the father of the petitioner to withdraw the said FIR otherwise they have been threatened to be eliminated and with regard to the same an Informatory Petition No. 831 of 2008 has been filed in the court of SDJM, Bikramganj at Rohtas on 23.10.2008. Accordingly, apprehension has been expressed by the petitioner that she may be harmed if she would go to make pairvi in the matrimonial case pending in the court of Principal Judge, Family Court, Sasaram in the district of Rohtas. The main submission of learned counsel for the petitioner is that the petitioner resides with her father in village Hasan Bazar in the district of Ara whereas the matrimonial case is pending in the court of Sasaram in the district of Rohtas and the petitioner being a lady is facing 3 difficulty to go to another district to make proper pairvi in the case. Learned counsel for the opposite party, on the other hand, submits that the transfer petition has not been brought bonafide; rather only to delay the matrimonial case and to harass the opposite party the same has been filed. Learned counsel refers to Annexure-2 to the counter affidavit, which is the order dated 22.5.2009 passed in C.R.No.353 of 2009 filed by the petitioner against the opposite party by which the stay order passed on 3.3.2006 was vacated on that day since learned counsel for the petitioner had sought pass-over for the day which was the last working day before ensuing summer vacation. It is submitted that the stay of matrimonial case having been vacated on the last day before summer vacation immediately on the reopening day, i.e., on 22.6.2009 the present application was filed and thereafter stay was obtained in the present matter. It is further submitted by learned counsel for the opposite party that the matrimonial case was filed in January, 2008 by the opposite party and thereafter the petitioner had appeared in the said matter and filed the written statement and at no stage any prayer was made before the said 4 court that the petitioner was facing any inconvenience in conducting the case at Sasaram nor any allegation was made that she and her father were being harassed and threatened while going to Sasaram in connection with the matrimonial case and even with respect to the informatory petition filed on 23.10.2008 there is no allegation therein regarding petitioner and her father being threatened by the opposite party in the matrimonial case. It is further submitted that if there was any reality in the said informatory petition then the petitioner could have immediately acted upon the same and applied for transfer soon thereafter and not waiting for eight months before filing the transfer petition after the summer vacation, on the stay of matrimonial case having been vacated by this Court in Civil Revision application. It is submitted that a false plea has been raised in the present matter just to harass the opposite party. It is the further contention of learned counsel that at no stage any petition was filed before the Family Court regarding any inconvenience being caused to the petitioner. It is also pointed out in the counter affidavit that the village Hasan Bazar where the petitioner resides is located only 49 kilometers 5 from Sasaram where the trial of the matrimonial case is going on whereas the Family Court at Ara is situated 51 kilometers away from village Hasan Bazar. No inconvenience can be caused merely because there is a change of district and as a matter of fact it is nearer for the petitioner to conduct the case at Sasaram than at Ara and thus a false plea has been taken regarding inconvenience and difficulty caused to the petitioner in making pairvi in the matrimonial case at Sasaram, being located in another district. Learned counsel submits that the said statement has not been denied by filing any reply to the same. Learned counsel also submits that the opposite party is a Railway employee and thus any such allegation of threat by him is on the face of it false. In a catena of decisions of the Supreme Court and of this Court it has been held that transfer of such matrimonial matters at the behest of the wife should ordinarily be allowed keeping into consideration that the inconvenience caused to the wife in going to a distant place to conduct the case has to be given greater weight than the inconvenience caused to the husband on the case 6 being transferred to the place where the wife is residing. So far as the present matter is concerned, the said principle has no application as admittedly although the petitioner resides in the district of Bhojpur which has its headquarters at Ara where the Family Court to which transfer is sought is located, but as a matter of fact her village is nearer to Sasaram where the matrimonial case is being tried at present. Hence there can be no question of any inconvenience to the petitioner in going to Sasaram for conducting of the matrimonial case. Thus the main ground on which this Court ordinarily allows the matrimonial case to be transferred is completely lacking in the present matter. This Court also finds sufficient force in the submissions of learned counsel for the opposite party that the transfer petition lacks bonafide as it has been filed immediately on the reopening day after the summer vacation when the stay of the matrimonial case granted in another Civil Revision filed by the petitioner had been vacated by this Court on the last day before the summer vacation. Further the plea regarding threat also does not appear to be well founded as no steps were 7 taken by the petitioner immediately after the threat was given on 23.10.2008 when the informatory petition was filed by her father, for getting the matter transferred from Sasaram court to Ara court and thus it appears that a false plea regarding threat by the opposite party has been raised at a belated stage only for the purpose of getting the matter transferred from Sasaram court to Ara court. This Court exercises its discretion to transfer a case only on certain valid grounds and reasons. There does not appear to be any such valid ground and reasons in the present matter. The transfer petitioner is, accordingly, dismissed. (Ramesh Kumar Datta,J.) spal/