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Allahabad HC says wife’s convenience is dominating factor for justifying transfer of matrimonial case

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The Allahabad High Court has observed that the convenience of the wife is the dominating factor for justifying transfer of a matter in matrimonial cases.

The single-judge bench of Justice Vivek Varma passed this order in a matrimonial case filed by Garima Tripathi. She has filed a transfer application under Section 24 of the Code of Civil Procedure, 1908.

The applicant seeks transfer of pending petition (Suyash Sharma Vs. Smt Garima Tripathi), under Section 10 read with Section 13(1)(i-a) of the Hindu Marriage Act, 1955 from the Court of the Principal Judge, Family Court, Kanpur Nagar to the Family Court, Prayagraj.

“It is pertinent to state that there is no strait-jacket formula that can be adopted in order to determine the transfer proceedings. It is not a mandatory rule that the transfer applications are always to be transferred for the asking of the wife, but at the same time, the wife, in situations where she is disadvantaged on recognized parameters, for the sake of equity, her interests are to be safeguarded,”

-the Court said.

The parties were married according to Hindu rites on June 2, 2017, and it can be noticed for the purpose of the transfer application that the applicant and the opposite party, Suyash Sharma, her husband, have turned into an estranged couple. Whatever be the issues between them, the opposite party has filed a petition under Section 10 read with Section 13(1)(i-a) of the Hindu Marriage Act, 1955 against the applicant.

The applicant completed her MBBS course in 2012 and is currently a resident doctor at Kamla Nehru Memorial Hospital at Prayagraj.

The applicant got herself enrolled in the course of Diplomate in Obstetrics and Gynaecology (DGO) under the National Association for the Reproductive and Child Health of India- Indian College of Maternal and Child Health on July 6, 2019 at Kamala Nehru Memorial Hospital, Prayagraj.

The applicant has also applied for the post of Medical Officer in Kamala Nehru Memorial Hospital to discharge her professional duties after the completion of her diploma.

The applicant is getting a monthly stipend of Rs 10,000 out of which she pays the rent, mess fee and electricity bill. It is contended that the applicant being a young woman cannot travel to district Kanpur, which is about 200 km from district Prayagraj, to defend the proceedings with no one to escort her as she lives alone in Prayagraj.

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A detailed counter-affidavit has been filed by the opposite party. It has been averred in the affidavit that the applicant-wife will stay at Prayagraj for a temporary period, that is, till the completion of her diploma.

The transfer application has been filed only to delay and extend the divorce proceedings so instituted.

It is also averred in the counter-affidavit that the opposite party is an employee of Sharma Nursing Home. The opposite party has deposited all the fees of the applicant for the DGO course and is making regular payments to the applicant for her maintenance.

It is further asserted that the opposite party is taking care of her old age parents, who are not keeping well. The opposite party also asserts that there is a serious threat to his life at Prayagraj.

In the rejoinder affidavit, the applicant has denied the allegations as made in the counter-affidavit. It is asserted that the opposite party is the Director of Sharma Nursing Home, Swaroop Nagar, Kanpur. The said nursing home has a large number of employees and doctors.

The opposite party is working in his own nursing home and can take leave as and when he desires. The father of the opposite party is also an MD in Anesthesia who can replace the opposite party, if needed, and also have a battery of staff and domestic help at their residence and, as such, in the absence of the opposite party his family can take good care.

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The Court observed that the expenditure involved in travelling to Kanpur from Allahabad is not very relevant, as that can always be compensated by directing the husband to pay for the wife’s travel.

“In this case, the husband is already willing to pay the travelling cost, but the applicant-wife has no one in her family to escort her on the journey. In matrimonial cases, convenience of the wife is the dominating factor for justifying transfer of a matter. Now so far as the allegation by the opposite party regarding threat to his life at Prayagraj is concerned, that allegation is not based on any cogent material and as such, the said plea cannot be accepted by the Court,”

-the Court said while allowing the transfer application.

“The petition (Suyash Sharma Vs. Smt. Garima Tripathi) under Section 10 read with Section 13(1)(i-a) of the Hindu Marriage Act, 1955 pending in the Court of the Principal Judge, Family Court, Kanpur Nagar is transferred to the competent Court at Prayagraj. The Court at Kanpur shall ensure early transmission of the record to district Prayagraj. The transferee Court shall thereafter make it convenient to ensure that the case is disposed of as early as possible within six months of the receipt of the record,”

-the order reads.

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