Back
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, RATNAKER BHENGRA, JJ.
Smita Akhouri @ Rani, wife of Abhishek Kumar Shrivastav – Appellant
Versus
Abhishek Kumar Shrivastav @ Rishi, son of late Shiv Ratanlal – Respondent
FA No. 363 of 2018
Decided on : 01-12-2022
Transfer Petition - Divorce Case - Hindu Marriage Act, 1955, Section 24, Section 13(1)(i-b), Section 25 - The court allowed the transfer petition under Section 24 of the Civil Procedure Code, considering the petitioner's hardship and the pendency of a criminal case against the opposite party. The court restored the divorce case to the original court for considering the appellant's claim for maintenance and alimony under Section 25 of the Hindu Marriage Act, and ordered the case to be transferred to the Family Court at Hazaribag.
Fact of the Case:
The appellant filed a transfer petition seeking transfer of a divorce case to another court, citing physical harassment and mental torture by the opposite party. The divorce case was decreed ex-parte against the appellant, and the appellant challenged the procedure adopted by the Family Court.
Finding of the Court:
The court allowed the transfer petition, restored the divorce case to the original court for considering the appellant's claim for maintenance and alimony, and ordered the case to be transferred to the Family Court at Hazaribag.
Issues: Validity of the procedure adopted by the Family Court in setting the divorce case for ex-parte hearing, and the appellant's claim for maintenance and alimony under Section 25 of the Hindu Marriage Act.
Ratio Decidendi: The court allowed the transfer petition under Section 24 of the Civil Procedure Code, and considered the appellant's hardship and the pendency of a criminal case against the opposite party. The court also emphasized the appellant's right to claim maintenance and alimony under Section 25 of the Hindu Marriage Act.
Final Decision: The court allowed the transfer petition, restored the divorce case to the original court for considering the appellant's claim for maintenance and alimony, and ordered the case to be transferred to the Family Court at Hazaribag.
ORDER :
Shree Chandrashekhar, J.
Mr. Prabhat Kumar Sinha, the learned counsel for the appellant, submits that before Transfer Petition (Civil) No. 42 of 2017 filed by the appellant seeking transfer of Original Maintenance Suit No. 10 of 2017 (in short, “divorce case”) at Family Court, Latehar was finally decided, the divorce case was decreed ex-parte against the appellant vide judgment dated 10th January 2018.
2. Mr. Prabhat Kumar Sinha, the learned counsel for the appellant, brings to our attention the order dated 12th June 2018 passed in the said Transfer Petition.
3. The order dated 12th June 2018 records as under:
1. This transfer petition has been filed under Section 24 of the Civil Procedure Code for transfer of Original (Matrimonial) Suit no. 10 of 2017, pending in the Court of learned Principal Judge, Family Court, Latehar to the Court of Principal Judge, Family Court, Hazaribag.
2. Learned counsel has submitted that the petitioner was subjected to physical harassment and mental torture due to non-fulfilment of unlawful demand of Rs.5,00,000/-(five lakhs) by the opposite party-husband. That she was compelled to leave her matrimonial home and that she has been residing with her grandfather at Hazaribag. That she has filed a complaint case bearing Complaint Case no. 41 of 2015 against the opposite party-husband. That the opposite party in order to save his skin has filed the present matrimonial suit in 2017. It is submitted that the petitioner does not have any independent source of income neither any fund to defend the suit by engaging a counsel in the courts of Latehar. That the petitioner is facing great hardship and difficulty in meeting the travelling expenses from Hazaribag to Latehar.
On the said ground, the transfer has been sought.
3. It appears from the record that notice has been validly served upon opposite party. On 27.03.2017 when the case was called out, none had appeared on behalf of opposite party. However, in the interest of justice opportunity was given to the opposite party to file his appearance on the next date. Today also, the opposite party has not appeared.
4. Heard. Considering the fact that the petitioner has instituted criminal case against opposite party-husband at Hazaribag and the opposite party has to face trial in the said case. Original (Matrimonial) Suit no. 10 of 2017 was filed by opposite party subsequent to the filing of the said complaint case by the petitioner. Moreover, the petitioner does not have any independent source of income and she is facing great difficulty and hardship in travelling from Hazaribag to Latehar neither she has sufficient funds to defend the suit. Thus, keeping in view the inconvenience of the petitioner, it is deemed just and proper to transfer Original (Matrimonial) Suit no. 10 of 2017, pending in the Court of learned Principal Judge, Family Court, Latehar to the Court of Principal Judge, Family Court, Hazaribag at the stage at which it is, if the case has not been disposed off as yet.
5. In the result, the transfer petition is, hereby, allowed.
6. Let a copy of this order be communicated to the courts below forthwith for needful.”
4. The respondent filed the divorce case seeking dissolution of his marriage solemnized with the appellant on 28th November 2012 at Punam Villa at Hazaribag on the ground of desertion as envisaged under section 13 (1) (i-b) of the Hindu Marriage Act, 1955 (in short, “HM Act”).
5. As noticed above, the appellant who had filed Transfer Petition (Civil) No. 42 of 2017 did not participate in the proceeding of the aforesaid divorce case and on the basis of tracking report indicating service of summons upon her the divorce case was set for ex-parte hearing against her. Finally, the divorce case was decreed on the basis of the evidence tendered by the respondent which the Family Court considered sufficient to hold that the respondent was able to establish desertion on the part of the appellant from 5th February 2014.
6. Without g
The right to claim maintenance and alimony under Section 25 of the Hindu Marriage Act, and the procedure for transfer of cases under Section 24 of the Civil Procedure Code.
Grant of alimony and maintenance – While making an order Court shall have due regard to conduct of parties and other circumstances of case.
Once the applicant has moved application under Section 24 of Act, 1955, which was allowed and uninterrupted litigation expenses is paid to her, she cannot move transfer application on the ground of d....
In matrimonial transfer petitions, wife's convenience prevails due to distance, minor child care, financial constraints without spousal support, prioritizing balance of convenience and justice.
The court's decision was based on the valid and justified grounds for transfer, the pending criminal cases, and the lack of rebuttal from the respondent, leading to the allowance of the transfer peti....
In matrimonial matters, the convenience of the wife is paramount, and petitions should be consolidated to prevent conflicting judgments.
Wife's convenience prioritised in matrimonial transfer petitions under Section 24 CPC.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
