1. This petition is preferred by the applicant/wife under section 24 of the CPC for transferring the Civil Original Suit No.61-A/09 filed by the respondent/husband under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 in the Family Court Sagar, from such Court to the competent court at Bhopal. It is noted that on earlier occasion, M.C.C No.1036/09 was also filed on behalf of the applicant in this regard but the same was dismissed as withdrawn by extending liberty to the applicant to file the fresh petition by mentioning the additional and elaborate facts vide order dated 6.10.09. Accordingly, on earlier occasion, no such petition has been decided on merits. In such circumstances, the same is being decided on merits.
2. The facts giving rise to this petition are that the respondent herein, being husband of the applicant, on arising some matrimonial dispute between them, filed the aforesaid civil suit under section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 for decree of divorce in the Family Court, Sagar, while at the instance of the applicant, a criminal case under section 12 of the Protection of Women from Domestic Violance Act, is pending in the court of JMFC Bhopal. As per further averments of it, the applicant, being woman, under the compelling circumstances created by the respondent, is residing with the family of his father at Bhopal. His father being old aged person is not in a position to accompany her for attending the above mentioned case on every date at Sagar and except the father there is no any other person in the family of her parents to accompany her for attending the case at Sagar. It is also stated that the applicant being unemployed person, is not having any source of income and, in such circumstance, she is unable to afford the traveling and other expenses for attending the case at Sagar. Besides that she is under apprehension that on her going to Sagar she may be subjected to any untoward incident by the respondent. With these averments the applicant has filed this petition.
3. In reply of the respondent all the aforesaid grounds for transferring the case are denied. In addition it is stated that in compliance of the direction of the trial court he is paying the interim alimony and the expenses of the applicant to attend the case at Sagar. In this regard some documents are also annexed with the reply. It is also stated that in pendency of such case, since the date of its institution, on coming the applicant to Sagar for defending the case, no untoward incident has taken place. Even otherwise, no police report has been lodged by the applicant in this regard till today. As per further averments, the petition is preferred only for harassing the respondent. Earlier to this petition, some petition was also filed. The same was withdrawn and now without mentioning any change in the circumstance or the particulars, the same is filed with same averments and prayed for dismissal of the petition.
4. The applicant's counsel by referring the facts stated in the petition made an additional submission that out of the aforesaid wedlock of the applicant and the respondent, they have been blessed with a daughter to being aged 6 years, is also residing with the applicant and except the applicant, no any other person is available in her parental family to look after such daughter as her father being old aged person is not in a position to lookafter such daughter and prayed to allow this petition.
5. On the other hand, responding the aforesaid arguments, respondent's counsel by referring the averments of the reply said that the case is at the stage of recording the evidence of the applicant and her witnesses and, in such premises, only in 2-3 dates, it may be concluded by the trial court. He also argued that he is paying the interim alimony and the expenses of the litigation as directed by the trial court, therefore, there is no necessity to transfer the case from Sagar to any other court of Bhopal and prayed for dismissal of this petition.
6. Having heard the parties I have gone through the petition as well as the papers placed on the record.
7. According to the applicant, in her parental family, except her old aged father, no one else is available to look after her daughter aged six years residing with her and the father being old aged person is not in a position to accompany with the applicant and being woman, she all-alone is not in a position to go and defend the case at Sagar. True it is, the distance of Sagar from Bhopal is near about 200 KM but while considering the rival contention of the parties, this court has to keep the welfare of their minor daughter residing with the applicant. It is apparent from the papers placed on the record that except the applicant, no one else is available in her parental family to lookafter her daughter and, in such situation, if the case is not transferred from Sagar to Bhopal then in that circumstance not only the applicant but her daughter has also to face the inconvenience and that may affect the future welfare of such daughter.
8. Besides this, it is undisputed fact that the respondent/husband is resident of Sagar and in view of the nature of their matrimonial dispute as the petition for divorce has been filed by the respondent on the ground of desertion and cruelty both and, in such premises, the apprehension in the mind of the applicant that on going to Sagar she may be subjected to any untoward incident by the respondent could not be discarded. It is also settled principle of the law that in the matter of difficulties and convenience, the women requires more consideration in comparison of men.
9. In the matter of transferring the cases from one court to another, this court has to consider the circumstance as laid down by the Apex Court in the matter of Kulwinder Kaur v. Kandi Friends Education Trust- (2008)3 SCC 659 in which it was held as under :- "22. Although the discretionary power of transfer of cases cannot be imprisoned within a strait jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection.
23. Reading Ss.24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by the Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; `interest of justice' demanding for transfer of suit, appeal or other proceeding etc. Above are some of the instances which are germane in considering the question of transfer of a suit appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a `fair trial' in the Court from which he seeks to transfer a case, it is not only the power but the duty of the Court to make such order."
Keeping in view the principle laid down in the cited case, on examining the case at hand, the balance of convenience appears in favour of the applicant as she and her witnesses are residing at Bhopal. It is noted that as per submission of the respondent's counsel, his witnesses have already been examined and only the witnesses of the applicant are to be examined in the matter.
10. In view of the aforesaid discussion, because of a minor daughter, when applicant herself is not in a position to go and defend the case at Sagar then it would not be possible for her to produce the witnesses of Bhopal for examination at Sagar and if such witnesses are not examined by her then she could not put her defence properly in the matter and, in such premises, fair justice could not be carried out between the parties. Thus, the balance of convenience is in favour of the applicant and if the case is not transferred then she has to face more inconvenience in defending the case at Sagar. So, keeping in view, the available circumstances of the case, in order to hold fair trial of the case between the parties and also taking into consideration the convenience of the applicant, this petition deserves to be allowed.
11. Therefore, by allowing this petition, the above mentioned Civil Suit No.61-A/09 pending in the Family Court, Sagar is hereby ordered to be transferred from such Court to the Family Court Bhopal for its further trial and adjudication. There shall be no order as to the cost.