JUDGMENT
S.K. Phaujdar, J.
1. This is an application under Section 24 of the Code of Civil Procedure for Transferring Case No. 89 of 1988, Dr. Kuldeep Saxena v. Dr. Manju Saxena, from the Court of Principal Judge, Family Court, Kanpur Nagar, to the family Court at Lucknow. The suit has been instituted by Dr. Kuldeep Saxena against Dr. Manju Saxena for divorce under Section 13 of the Hindu Marriage Act. The marriage between the parties is not dispute. They have two sons and an application under Section 26 of the said Act for the custody of the children is also pending before the Family Court at Kanpur Nagar.
2. The sole ground for transfer as made out in the application under Section 24, CPC is as under :
Sri S.C. Tewari, Principal Judge, Family Court, Kanpur Nagar (who was arrayed as opposite party in the present application) was showing undue favour to Dr. Kuldeep Saxena. He allegedly manipulated certain entries in the order sheet regarding the statement of the two sons of the parties, namely, Kanhaiya and Pushkar. An apprehension was indicated in the application that Smt. Saxena would not get the justice from Sri S.C; Tewari. In the affidavit appended to the transfer application a statement was made by the applicant that her husband was not behaving properly with her and he used to beat her and he had taken to second wife. It was contended that the applicant had once been mercilessly beaten by the husband and an FIR was lodged by her. A copy of the FIR has been annexed to the application and it shows that the FIR was lodged as far back as on 21.2.1988, whereas the application for transfer was preferred in 1994 and threat of apprehension of any mischief at the hands of the husband was not mentioned as a ground for transfer.
3. In the course of arguments, the learned Counsel for the applicant submitted that the husband had now been transferred from Kanpur Nagar to Renukut and none of the parties are now residing at Kanpur and for the sake of convenience of the wife-applicant, the case should be transferred to Lucknow and that would not cause any difficulty to the husband who had gone to Renukut. This plea was opposed to by Shri A.K. Misra stating that although there was a transfer order, it has been kept in abeyance and not given effect to, and in any case, according to Sri Misra, the question of convenience may not be of any consequence when the parties had been contesting the suit at Kanpur for the last about 8 years. It was further contended by Sri Misra, appearing for the respondent, that the matrimonial suit in question has now been transferred to another Family Court and Sri S.C. Tewari has no manner of concern with that case any more : While admitting that the case has been transferred to another Court, Mr. Ranjit Saxena submitted that Sri Tewari still continues to be the Principle Judge of the Family Courts at Kanpur Nagar and in that capacity he was in a position to exer his influence on another judge of the Family Court. This suggestion, in my view, is preposterous. There is no such allegation and the Court cannot assume or conclude, without any facts laid before it, that one Judge will be influenced by another Judge and that too in a matter where the Principal Judge is not personally involved.
4. The transfer was objected to by the other party on another ground as well. It was stated that not only the divorce application but a prayer for custody of the boys is still pending before the family Court. The boys, Kanhaiya and Pushkar, on me basis of their statements, have been given in custody of the father till the matter is finally disposed of. It is quite probable that they may be called to the Court to answer any other query concerning their custody. It was contended that they are prosecuting their studies at Kanpur peacefully and if they are required to attend the Court at a place other than Kanpur, their studies will be/seriously affected.
5.1 have considered all the submissions. The case is now not in the hands of Sri S.C. Tewari and the petition was filed making allegations of bias against him only. Transfer may not be allowed on the ground that Sri Tewari may influence the other Judge of the Family Court. The prayer for transfer may not also be allowed on the ground of assault as no fresh allegation of assault after 1988 has been made nor any case of threat has been put forward. Transfer may not again be allowed on the ground of convenience as the parties have been attending the Court at Kanpur for me last 8 years and also because the transfer may affect the study of the two boys.
6. In the result, the transfer application stands dismissed. The trial Judge, however, is directed to take up the matter of the main application as also the application under Section 26 of the Hindu Marriage Act as expeditiously as possible without being influenced by any comments made in the order touching the merits of the case.
