While ruling on a very significant legal issue on pure merit after a lot of deliberation, the Madhya Pradesh High Court has in a most learned, laudable, landmark and latest judgment titled Sunaina Vishwakarma v. Vijay Kumar Vishwakarma in Misc. Civil Case No. 2653 of 2019 that was pronounced as recently as on 24 April, 2023 has rejected a transfer petition on the logical ground that the wife has failed to make out a case of inconvenience or hardship. We ought to note that in this case a plea was filed by the wife/applicant seeking transfer of a case pending before the First ADJ, Kotma, Anuppur to District Jabalpur. The counsel for the wife submitted before the Court that the husband/respondent filed a petition under Section 13 of the Hindu Marriage Act, 1955.
At the very outset, this remarkable, refreshing, robust, rational and recent judgment authored by a single Judge Bench comprising of Hon’ble Shri Justice Maninder S. Bhatti sets the ball in motion by first and foremost putting forth in the opening para that, “This is a petition by the petitioner/wife seeking transfer of Case No.RCSHM40/19, pending before the Court of First ADJ, Kotma, Anuppur to District Jabalpur.”
As we see, the Bench then states in the next para of this commendable judgment that, “Learned counsel for the petitioner contend that the respondent/husband has filed a petition under Section 13 of the Hindu Marriage Act which is registered as RCSHM No.40/19 and pending consideration before the First Additional District Judge, Kotma, Anuppur District.”
To put things in perspective, the Bench envisages in the next para of this notable judgment that, “Learned counsel contend that the respondent is an employee of Railways working as Assistant Loco Pilot and is posted in Sambalpur District, Orissa who entered into wedlock with the present petitioner on 28.04.2017. Thereafter, on account of certain disputes which crept up between the parties, the same gave birth to various matrimonial disputes. The present petitioner has filed an application against the Respondent under Section 125 of the Cr.P.C. in the Family Court, Jabalpur, which is pending consideration. The Respondent has also filed a petition under Section 9 of the Hindu Marriage Act, which is also pending consideration before the Family Court.”
Needless to say, the Bench then while prima facie dwelling on the hardships faced by the petitioner enunciates in the next para of this noteworthy judgment that, “Learned Counsel contend that the appearance of the petitioner at Kotma, District Anuppur would cause inconvenience to the petitioner as the distance between Jabalpur and Kotma is approximately 320 kms.”
Further, the Bench then hastens to add in the next para of this thought provoking judgment that, “It is further contended by the learned counsel that the father of the petitioner is not keeping well which is evident from the document pertaining to treatment which has been brought on record as Annexure A-4. The learned counsel further contends that there is no male member of the family to accompany the petitioner to Kotma, Anuppur on scheduled dates of hearing. The learned counsel for the petitioner has placed reliance on the decision of the Apex Court in N.C.V. Aishwarya Vs. Saravana Kartik (Civil Appeal No(S).4894 of 2022) and also decision of this Court in Smt. Neha Vaishya Vs Shri Mukesh Vaishya (M.C.C.No.2735/2018).”
On the other hand, the Bench then mentions in the next para of this pragmatic judgment that, “Learned counsel for respondent submits that the present application filed under Section 24 of CPC is grossly misconceived inasmuch as, the respondent/husband first moved a petition under Section 13 of Hindu Marriage Act and an offshoot thereof, the petitioner’s wife lodged an FIR under Section 498A read with Section 34 of I.P.C. The learned counsel while taking this Court to the statement of the present petitioner recorded by the Judicial Magistrate First Class in the trial of case registered under Section 498A read with Section 34 of I.P.C. submits that paragraph 10 of the statement makes it abundantly clear that in order to settle a score, the present petitioner lodged a report under Section 498A against the respondent and therefore, submits that the case is not required to be transferred. It is further contended by the counsel that a perusal of Annexure R/2 reflect that on 11.04.2023 itself, the present petitioner appeared before the Judicial Magistrate First Class, Kotma District Anuppur for recording of her statement. Thus, as the petitioner is entering appearance before the trial Court without any demur or protest. Therefore, no interference is warranted.”
Furthermore, the Bench then deems it apposite to state in the next para of this brilliant judgment that, “The counsel has further submitted that the respondent is working as Assistant Loco Pilot and is posted at Sambalpur, Orissa. Therefore, appearance on scheduled dates of hearing at Jabalpur would cause immense hardship as well as inconvenience to the respondent. It is further contended by the counsel that the inconvenience of husband is also a factor which is required to be taken into consideration while dealing with the petition under Section 24 of CPC. The counsel also submits that the tendency of the filing of transfer petition has been deprecated by the Apex Court in a recent decision and, therefore, submits that no interference in the present petition is warranted.”
What’s more, the Bench then while citing the most relevant case laws seeks to disclose in the next para of this pertinent judgment stating that, “The counsel has placed reliance on the decision of the Apex Court in the case of Indian Overseas Bank, Madras Vs. Chemical Construction Company & Ors. Reported in (1979) 4 SCC 358, Usha George Vs. Koshy George reported in (2000) 10 SCC 95 and Preeti Sharma Vs. Manjit Sharma reported in (2005) 11 SCC 535.”
Of course, the Bench then mentions in the next para of this elegant judgment that, “Heard the rival submissions and perused the record.”
As things stand, the Bench then points out in the next para of this cogent judgment that, “A perusal of the record reflects that the petitioner is seeking a transfer of petition which has been filed by the respondent-husband under Section 13 of the Hindu Marriage Act. It is undisputed from the perusal of paragraph 11 of the statement of the petitioner that after filing of petition under Section 13 of the Hindu Marriage Act, a report under Section 498A of I.P.C. was lodged against the present petitioner. The petitioner/wife has filed an application under Section 125 of Cr.P.C which is pending consideration before the Family Court, Ramnagar and also filed a petition under Section 9 of Hindu Marriage Act before the Family Court, Ramnagar which is also pending consideration.”
It would be worthwhile to note that the Bench then mentions in the next para of this creditworthy judgment that, “A perusal of the statement of the petitioner recorded recently on 11.04.2023 which is contained in Annexure R/2 reflect that the present petitioner entered appearance and her statement has been recorded in RCT No.440/2021 pending in connection with offence registered against the respondent/husband under Section 498A, 34 of IPC read with Section 3 and 4 of Dowry Prohibition Act.”
It cannot be glossed over that the Bench then minces just no words to put across forthrightly in the next para of this laudable judgment that, “It is undisputed by the parties that the petition filed under Section 13 of Hindu Marriage Act is pending consideration before the First ADJ, Kotma, Anuppur District since 2019. It is also undisputed that the respondent/husband is working as Assistant Loco Pilot and therefore, is required to be deputed on night duty as well during the course of employment. The Apex Court has considered the tendency of the filing of transfer application and has held in paragraph 3 of the decision in the case of Anindita Das Vs. Srijit Das reported in (2006) 9 SCC 197 as under :
3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. On an average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women.”
Most significantly, the Bench minces absolutely no words to hold in the next para of this sagacious judgment that, “The said decision in Anindita Das Vs. Srijit Das was taken note of by this Court in almost an identical case registered vide MCC No.3142/2022 and this Court, while taking into consideration the fact that the respondent therein was also working against the post of Senior Assistant Loco Pilot, considered the nature of employment and also considered the aspect that the respondent/husband therein was willing to bear the expenses required for ensuring appearance of the petitioner therein in a case instituted by the respondent/husband and accordingly, this Court declined to entertain the transfer petition filed by the wife. This Court in the case of Surabhi Shrivastava (supra) held in operative paragraphs as under :-
“11.The Petitioner does not dispute that the respondent is working as Senior Loco Pilot with Railways and there is already an order by which the maintenance has been granted to the present petitioner in the proceedings instituted by the petitioner/wife under section 125 of Cr.P.C. The respondent has already expressed that he is willing to bear the expenses which are required securing appearance of the petitioner in RCS HM No.1277/2022 pending in the Family Court, Bhopal. The respondent/husband has stated that the petitioner/wife on her own volition left the matrimonial house on 13/06/2021. The statement of the petitioner has been brought on record alongwith the return which has not been controverted by the petitioner.
12. In view of the matter, this Court is not inclined to transfer case no.RCS HM No.1277/2022 from Family Court, Bhopal to Family Court, Vidisha and accordingly, the present petition stands dismissed. However, the Family Court, Bhopal is directed to ascertain and order payment of the expenses which are required to be paid by the respondent/husband to the petitioner/wife for securing her presence on the scheduled date of hearing.”
Most forthrightly, the Bench mandates in the next para of this learned judgment that, “A perusal of the aforesaid reflect that in the present case, the petitioner has failed to make out a case of inconvenience or hardship inasmuch as, recently the petitioner herself is appearing in the Court at Anuppur in the other cases and recently on 11.04.2023, the petitioner has appeared in a case which is registered against the respondent under Section 498A of I.P.C. The counsel for respondent in the present case has also expressed that he is willing to bear the expenses which are required for appearance of the petitioner in the petition filed under Section 13 of Hindu Marriage Act by the respondent/husband.”
Finally, the Bench concludes by directing in the final para of this precise judgment that, “Accordingly, in view of the aforesaid, this Court is not inclined to transfer the case No.RCS HM No.40/19 from the Court of First Additional District Judge, Kotma, Anuppur District to District Jabalpur and accordingly, the present petition stands dismissed. However, the Court of First Additional District Judge, Kotma, Anuppur District is directed to ascertain and order payment of the expenses which are required to be paid by the respondent/husband to the petitioner/wife for securing her presence on the scheduled date of hearing.”
All said and done, it is indubitably clear that the Madhya Pradesh High Court after taking into consideration all the relevant facts of the case has unambiguously held that the wife has failed to make out a prima facie case of inconvenience or hardship. It is also rightly pointed out that the petitioner herself is appearing in the Court at Anuppur in the other cases. So it was anything but quite ostensible in such circumstances that her transfer petition was so very rightly rejected! There can be just no denying it!
Sanjeev Sirohi