ORDER
V.K. Agrawal, J.
1. This petition under Section 23(3) of the Code of Civil Procedure read with Section 21A of the Hindu Marriage Act has been filed for transfer of Civil Suit No. 274-A/97 pending between the parties from the Court of IV Additional District Judge, Jabalpur to the Court at Nagpur.
2. The averments made in the petition are : The parties were married at Nagpur on 15.4.1990. The respondent/husband has filed a petition for divorce under the Hindu Marriage Act, which is registered as Civil Suit No. 274-A/97 and pending in the Court of IV Additional District Judge, Jabalpur. It has been averred that the petitioner at the present is living at Nagpur with her parents as she was turned out of her matrimonial home. The parents of the petitioner are ill and old. Father of the petitioner is a heart patient and remains in bed under medical advice. Three brothers of the petitioner have separated and are looking after their own business. The petitioner belongs to conservative Jain family and it would reflect negatively on her reputation, if she moves alone from Nagpur to Jabalpur for attending Court cases. It is even otherwise inconvenient for her to come to Jabalpur alone. In one of her visits with her younger brother Rajesh and another close relative, when she went to her matrimonial home for making endeavour for compromise, she was threatened with dire consequences by the respondent. The petitioner has no income of her own and cannot meet the expenses of her visits for attending Court proceedings and, therefore, she would be unable to pursue her case at Jabalpur. It was, therefore, prayed that the above civil suit be transferred from Jabalpur to Nagpur. The application is supported by an affidavit of the petitioner.
3. The respondent, in his written reply, denied the above allegations. It is stated therein that Section 21A of the Hindu Marriage Act provides that if both the parties to the marriage have filed a suit for judicial separation and divorce at two different places, then the subsequently instituted suit should be transferred to the Court where the first suit has been instituted. It was averred that since the petitioner had not filed any suit or petition at Nagpur and since only the suit filed by the respondent/husband is pending at Jabalpur, Section 21A of the Hindu Marriage Act is not applicable. It is further averred that the personal convenience of the petitioner cannot be a ground for transfer of the suit. It has been averred that maintenance pendente lite being fixed by the Trial Court shall be paid by the respondent/husband regularly, and the amount of interim maintenance can be withdrawn by the petitioner/wife. It has been averred that the respondent/ husband is a businessman carrying on Medicine Shop and his interest would suffer adversely, if he is frequently required to go to Nagpur for attending Court hearings, while the petitioner/wife can come to Jabalpur with any of her brothers. It has further been averred that the language of the Court at Nagpur is Marathi with which the respondent is not conversant. Moreover, if the case is transferred to Nagpur, the record of the case will be required to be translated, which will delay the proceedings of the case. The witnesses of the respondent reside at Jabalpur and in case, the case is transferred, it would greatly prejudice the respondent/husband.
4. It was further averred by the respondent that he is ready and willing to pay fare and other charges as may be incurred by the petitioner in coming to Jabalpur to attend the hearings of the case. He also apprehends danger to his life, in case the case is transferred to Nagpur. It was, therefore, prayed that the petition for transfer be dismissed.
5. The learned Counsel for the petitioner, in support of the petition for transfer, has urged that the petitioner is a lady and belongs to a conservative family. It would be greatly inconvenient for her to come to Jabalpur. It has been submitted that the father of the petitioner is old and ailing and cannot accompany her to Jabalpur, while her three brothers having separate establishments are not in a position to accompany her on each date of hearing at Jabalpur. Therefore, the case deserves to be transferred to the Competent Court at Nagpur where the petitioner resides. Reliance has been placed by the learned Counsel in support of his case on Dr. K.L. Daftary and Ors. v. K.L. Dube and Ors., AIR 1955 Nagpur 44 and Smt. Nanda Kishori v. S.B. Shivaprakash, AIR 1993 Karnataka 87=I (1994) DMC 7 (SC).
6. The grounds raised by the petitioner for transfer of the case thus are that she is a lady belonging to conservative Jain family and she has no source of income for meeting the expenses for coming to Jabalpur from Nagpur and that it would be inconvenient for her to come to Jabalpur as her father is aged and ill and her brothers are pursuing their independent business.
7. The learned Counsel for the respondent/husband has urged that the plaintiff had a choice where to prosecute his suit and he is the dominus litis. He cannot be compelled without strong reasons to prosecute his suit in any other Court. He has also submitted that the trial has already started making progress. The language of the Court at Maharashtra being Marathi, the record would be required to be translated, which would involve considerable expenditure and delay. It has also been submitted that the petitioner is a businessman carrying on Medicine Shop and in case the suit is transferred at Nagpur, the same would adversely affect his profession. It has further been urged that he is willing to payment of interim maintenance if granted in favour of his wife, the petitioner. It is also submitted that whatever expenses are incurred by the petitioner in coming to Jabalpur, would be borne by him, as per orders of the Trial Court.
8. The learned Counsel for the respondent/husband has stated that the husband undertakes that he would adduce evidence without seeking any adjournment, and would thus not cause obstacle in the progress of the case. It has, therefore, been urged that merely because the petitioner is a lady does not entitle her to get the case transferred from the Court at Jabalpur to the Court at Nagpur, as has been prayed by her. The learned Counsel has relied upon Shiv Kumari Devendra Ojha v. Ramajor Shitla Prasad Ojha and Ors., AIR 1997 SC 1036; and Usha Bai Jain v. Santosh Kumar Jain, 1996 JLJ 518.
9. It appears that the petitioner had already prayed for grant of interim maintenance and legal expenses under Section 24 of the Hindu Marriage Act. As stated by the learned Counsel, the amount can then be withdrawn by the petitioner. It has been urged by the learned Counsel for the respondent that the petitioner herself is causing delay and obstructing the progress in the petition for divorce filed by the respondent/husband. It has been stated by the learned Counsel for the respondent that the respondent undertakes to co-operate in the trial fully and would be producing the evidence at the first hearing fixed for the purpose without seeking any adjournment and without causing any delay. He is also willing to pay the expenses of the petitioner, which she may incur for her coming to Jabalpur to attend the hearings of the case.
10. In view of the above, the greater convenience appears to be in permitting the case to be proceeded with, at the Court at Jabalpur, where it is pending. The mere fact that the petitioner is a lady residing at Nagpur or belongs to a conservative Jain family, does not appear to be a good ground for transfer of the case. The grounds as above do not constitute circumstances causing hardship or prejudice to her in her defence. It may be noted that in Shiv Kumari’s case (supra), the Supreme Court has observed that since the husband had agreed to bear the expenditure of travel and stay of the wife, there was no justification for transferring the matter to another Court. In Usha Bai Jain’s case (supra), this Court has observed that the case cannot be transferred to a place where she is residing merely because she is a lady and the transfer would depend upon the facts and circumstances of each case. Obviously, since the interim maintenance and legal expenses as well as monthly maintenance are Willingly offered to be paid by the respondent, and in view of the undertaking as above by the learned Counsel for the respondent/husband, it appears reasonable and convenient that the case be permitted to proceed at the Court at Jabalpur where it, filed by the respondent/plaintiff.
11. In the cases cited by the learned Counsel for the petitioner/wife, the cases were ordered to be transferred on consideration of convenience and other relevant factors. In Dr. K.L. Daftary’s case (supra), the consideration was convenience and delay causing considerable expenses to which the defendants were put and on the said considerations, the case was ordered to be transferred. In Smt. Nanda Kishori’s case (supra), the Karnataka High Court found that the wife was living a life of a destitute and was residing with her aged parents at other place. Therefore, the suit was directed to be transferred to the other Court.
12. However, in the instant case, it does not appear that the trial is likely to be prejudiced in case the case is proceeded with at Jabalpur, in view of the foregoing circumstances. In Mrs. Maneka Sanjay Gandhi and Anr. v. Miss Rani Jethmalani, AIR 1979 SC 468, it has been observed at page No. 469 as below :
“Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case…”
13. In the instant case, the grievances of the petitioner, on the basis of which, she seeks transfer of the case, do not appear to be substantial and cogent. They cannot be said to cause of prejudice in fair trial of the case at the Court at Jabalpur where it is pending. In view of the submissions and assurance given on behalf of the respondent/husband and after considering the submissions advanced by the learned Counsels, I am convinced that there would be no prejudice to the petitioner/wife, if the case is permitted to be proceeded with at Jabalpur.
14. In view of the above, this petition for transfer of the case does not deserve to be allowed. The same is dismissed. Parties shall bear their own costs.