Anjana Yadav vs. Vijay Krishna Yadav

Court No. - 6

Case :- TRANSFER APPLICATION (CIVIL) No. - 596 of 2021

Applicant :- Smt. Anjana Yadav Opposite Party :- Vijay Krishna Yadav Counsel for Applicant :- Sanjeev Kumar Yadav,Ramesh Chandra Yadav Counsel for Opposite Party :- Ramesh Kumar Mishra,Gyanendra Kumar Mishra

Hon'ble J.J. Munir,J.

Parties have exchanged affidavits.

Admit.

Heard forthwith.

Heard Mr. Sanjeev Kumar Yadav, learned counsel for the applicant and Sri Gyanendra Kumar Mishra, learned counsel for opposite party.

This transfer application has been filed by Smt. Anjana Yadav seeking transfer of Case No. 1069 of 2020, Vijay Krishna Yadav Vs. Anjana Yadav under Section 9 of Hindu Marriage Act, 1955 from Additional Principal Judge, Family Court-2, Muzaffarnagar to the Family Court at Ambedkar Nagar or any other Court near Ambedkar Nagar.

The applicant and opposite party are an estranged couple. The opposite party who is the husband has filed a petition for restitution of conjugal rights before the Family Court, Muzaffarnagar under Section 9 of Hindu Marriage Act on 03.10.2020.

It is pointed out by learned counsel for the applicant that a Criminal Case No. 10350 of 2021 (State Vs. Vijay Krishna) under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 of D.P. Act is pending inter partes at Ambedkar Nagar. The opposite party has to appear before the Court at Ambedkar Nagar, in any case, in connection with his defence. Therefore, if the present proceedings are moved from Muzaffarnagar to Ambedkar Nagar, it will be convenient to both the parties as they can request a common date to scheduled.

It is averred in paragraph 14 of the affidavit that no notice or summons of the case were ever served upon the applicant. In consequence, the said application has proceeded ex-parte. The applicant has filed a written statement and made a recall application seeking recall of the order dated 16.10.2021 passed in Case No. 1059 of 2020.

It is particularly emphasized that the distance between Ambedkar Nagar and Muzaffarnagar is 900 kilometers. The applicant does not have any source of income. She is unemployed and dependent upon her parents who are elderly persons with meager resources.

It is argued that given the distance between two stations, it is not within the applicant's financial and physical means to undertake the journey to and fro from Ambedkar Nagar to Muzaffarnagar on each date scheduled at Muzaffarnagar. On the other hand, opposite party is an able bodied man and can conveniently attend at Muzaffarnagar where he has to appear to defend in the criminal case under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 of D.P. Act.

Learned counsel for the applicant submits that in causes matrimonial, the wife's convenience about venue is important. He has placed reliance upon a decision of the Supreme Court in the case of Sumita Singh vs. Kumar Sanjay and another, AIR 2002 SC 396.

Learned counsel for opposite party Mr. Gyanendra Kumar Mishra has opposed the prayer for transfer and submits that the applicant is a well educated woman and has no problem in attending the proceedings at Ambedkar Nagar. He has invited the attention of the Court to paragraph 16 of the counter affidavit wherein it is averred that the applicant hails from a rich family and is not in need of maintenance.

It is also pointed out by learned counsel for the applicant that in view of the interim orders passed by the Lucknow Bench of this Court, the opposite party as well as his family members are not appearing in the criminal case pending before the Courts at Ambedkar Nagar. It is argued that the applicant is the daughter of Mr. Swami Nath Yadav, Advocate who war earlier practicing before the District Court, Azamgarh and was punished for criminal contempt there. In the circumstances, compelling the opposite party to appear at Ambedkar Nagar might imperil his security.

This Court has considered the entire facts and circumstances on record and considered the rival submissions.

It is true that cases inter partes are pending at Ambedkar Nagar and the fact that interim orders restraining coercive action does not detract from the fact that cases are pending at Ambedkar Nagar inter partes where the opposite party, in due course, has to appear unless the proceedings are quashed. The distance between Ambedkar Nagar and Muzaffarnagar is 900 kilometers which is a huge distance to travel on each date for the applicant or all by herself. The circumstance that has been pointed out in this case about the applicant's father being an Advocate, who earlier practiced at Azamgarh and was punished for criminal contempt, is a peculiar feature which may have some disconcerting effect on the opposite party in attending at Ambedkar Nagar. At least it is an apprehension which should not be lurking in the opposite party's mind.

Above all, the principle that cannot be lost sight of is that in matters of venue, the convenience of the wife has to be accorded primacy. In this regard, reference may be made to a recent decision of the Supreme Court in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, Civil Appeal No. 4894 of 2022, decided on July 18, 2022, where on the issue in hand, it has been held:

"9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial 4 matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer."

(Emphasis by Court)

In the circumstances, this Court is convinced that a case for transfer is made out. But, the change has to be one that is suitable to both parties in the circumstances noticed hereinabove.

In the result, this transfer application succeeds and is allowed. Proceedings of Case No. 1069 of 2020, Vijay Krishna Yadav Vs. Anjana Yadav are withdrawn from the Principal Judge, Family Court, Muzaffarnagar and made over to the Principal Judge, Family Court, Faizabad, who shall proceed to try the petition himself or assign it to an Additional Principal Judge available on the Court, as he deems fit. In either case, the trial

shall be expedited and endeavour shall be made to conclude the same within six months of the date of receipt of a copy of this order.

Let this order be communicated to the Principal Judge, Family Court, Muzaffarnagar and the Principal Judge, Family Court, Faizabad by the Registrar (Compliance).

Order Date :- 29.7.2022 Nirmal Sinha