The welfare of the minor child is of paramount consideration in deciding the transfer of a case under the Guardian and Wards Act, 1890.

JUDGMENT :

1. Heard Shri Amitabh Pratap Singh, learned counsel for the petitioners and Shri Agendra Sinha, learned counsel appearing for the respondent.

2. The instant petition has been preferred under Section 24 CPC seeking transfer of Case No.67 of 2017 (Alok Saxena Vs. Priyanka Spring & another)under Section 25 of the Guardian and Wards Act, 1890 pending in the Court of Additional Principal Judge, Court No.6, Family Court, Lucknow to the appropriate court in District Prayagraj.

3. It will be relevant to notice that the petition was preferred alongwith an affidavit filed by Shri Rohit Spring being the real brother of the petitioner no.1 and maternal uncle of the petitioner.2.

4. An objection was raised by Shri Agendra Sinha, learned counsel for the respondent that the petition could not be entertained since it was not supported by an affidavit of the petitioners.

5. Noticing the aforesaid, learned counsel for the petitioners on 04.05.2022 filed a supplementary-affidavit duly sworn by the petitioner no.1 Priyanka Spring wherein she reiterated the contents of the transfer application. It is also urged by the learned counsel for the petitioners that since the matter is pending before this Court and the petitioner no.1 has already filed an affidavit in support of the application for transfer. Thus, even though the initial affidavit may have been not appropriate but nevertheless since better affidavit of the petitioner no.1 herself has been now filed and available on record. The matter may be heard and decided on merits.

6. The record would also indicate that both the petitioners and the respondent have filed their counter-affidavit, rejoinder-affidavit and supplementary counter-affidavit as well, which are all part of the record.

7. Learned counsel for the petitioners submits that the petitioner no.1 and the respondent were married on 05.02.2002 in accordance with the provisions of the Special Marriage Act. From the said wedlock, a male child was born on 16.09.2006 i.e. the petitioner no.2 who is now residing with the petitioner no.1 in Prayagraj since 2015. Allegations have been levelled that the respondent did not take care and perform his responsibilities towards both the petitioners and as such the parties have been residing separately since 2013 and the petitioner no.2 since separation is residing with the petitioner no.1.

8. It is also urged that the respondent is a practicing lawyer at Lucknow while the petitioner no.1 is teaching in a private school in Prayagraj. It has also been asserted by the petitioners that the respondent has taken an ex parte divorce against the petitioner no.1 and since the relations between the petitioners and the respondent had broken to such an extent that she abided by the divorce decree and did not either challenge the ex parte decree or initiate any proceedings on her own.

9. It is further submitted that in order to further harass the petitioners, the respondent instituted a petition under Section 25 of the Guardian and Wards Act, 1890 registered as Case No.67 of 2017 pending before the Family Court at Lucknow. Since the respondent was a practicing lawyer hence he created an undesirable atmosphere which precludes the petitioners to pursue the case before the Family Court at Lucknow, appropriately.

10. So much so that the petitioners were earlier living at Lucknow and since 2015 is residing in Prayagraj and now since the petitioner no.2 has also gained age and is admitted in school in a higher class, it is very difficult for the petitioners to live at Prayagraj and attend the proceedings at Lucknow especially where the petitioner no.1 will not only miss her school where she is teaching but even the petitioner no.2 the minor son has to miss his school which is also not desirable as he has to undertake proper studies and there is no robust family support system with the petitioners where she can leave her minor son petitioner no.2. In the aforesaid circumstances, it is prayed that the proceedin