Case: Shakuntala Modi (Ms.) Vs. Om Prakash Bharuka

1. The petitioner and the respondent were wife and husband, and got three children out of the wedlock. The marriage has been dissolved by a decree of divorce. The parties are now litigating for the custody of their children 2. By the present application the petitioner has prayed for transfer of a case instituted by the respondent before Guardian Judge, Delhi, to the Court of District Judge, Dibrugarh, where an earlier application filed by the petitioner is pending. It is stated on behalf of the petitioner that the two proceedings should be heard by the same court and that for the reasons mentioned in the petition, the appropriate place is Dibrugarh and not Delhi3. The respondent has appeared in person and has contended that having regard to the circumstances mentioned in his counter affidavit, the transfer of the case from Delhi will cause great hardship to him. The parties have made a large number of allegations in their affidavits touching the merits of their respective claims for custody of the children. We are not concerned with these statements at the stage as the matter has to be examined and decided on merits when the cases are heard in court below4. The respondent has stated before us that he is not likely to get proper legal assistance at Dibrugarh where the petitioners uncle who is a rich person stays. However, he has not a suggested that on account of any financial difficulties he is not in a position to prosecute the litigation properly at Dibrugarh. On the other hand, he has offered to pay the expenses of the petitioner for travelling from Dibrugarh to Delhi by air, if the cases are heard at Delhi instead of Dibrugarh. His counter affidavit also indicates that he has advocate friends at Gauhati from whom he has received legal from time to time5. Having regard to the nature of the dispute involved in the two cases, we are of the view that it is highly expedient that the cases are heard by the same court. On an earlier occasion the respondent made an application for transfer of the Dibrugarh case of Delhi, which was rejected by the Court. The Dibrugarh case, therefore, has to be heard there. In the circumstances it is proper to transfer the Delhi case to Dibrugarh. Although it may cause the respondent some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of the present case it cannot be assumed that he will be prejudiced in prosecuting his case. If he is not in any financial difficulty, as it appears from the records and his own statement before this Court, he can make an appropriate arrangement for his representation at Dibrugarh and may not remain at Dibrugarh continuously for looking after the cases. It is expected that the trial Judge may fix a firm date for hearing of the cases to avoid adjournments so that the respondent may not have to pay repeated visits to Dibrugarh

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. Having regard to the nature of the dispute involved in the two cases, we are of the view that it is highly expedient that the cases are heard by the same court. On an earlier occasion the respondent made an application for transfer of the Dibrugarh case of Delhi, which was rejected by the Court. The Dibrugarh case, therefore, has to be heard there. In the circumstances it is proper to transfer the Delhi case to Dibrugarh. Although it may cause the respondent some trouble of undertaking the journey to Dibrugarh but, for that reason in the facts of the present case it cannot be assumed that he will be prejudiced in prosecuting his case. If he is not in any financial difficulty, as it appears from the records and his own statement before this Court, he can make an appropriate arrangement for his representation at Dibrugarh and may not remain at Dibrugarh continuously for looking after the cases. It is expected that the trial Judge may fix a firm date for hearing of the cases to avoid adjournments so that the respondent may not have to pay repeated visits to Dibrugarh