SMITA JAIN Vs. ANIL KUMAR JAIN

JUDGEMENT

(1.) This M.C.C. is filed under Section 21-A of the Hindu Marriage Act read with Section 24 of the Code of Civil Procedure for transfer of Case No.565/2011 of the Court of II Additional Principal Judge, Family Court, Bhopal and M.J.C. No.67/2011 of the Court of Principal Judge, Family Court, Bhopal to the competent Court at Vidisha.

(2.) It is contended by the petitioner that the respondent has filed the aforesaid two petitions, one under Section 13(1)(ia) of the Hindu Marriage Act and the other one under Sections 7 & 8 of the Guardians & Wards Act before the Family Courts. Both the cases are registered in the Family Court, Bhopal. It is contended that the said applications have been filed to counter the claim made by the petitioner on an application filed under Section 125 of the Code of Criminal Procedure for grant of maintenance before the Chief Judicial Magistrate, Vidisha. It is contended that on account of ill-treatment on the part of the respondent, the petitioner was required to live separately along with an infant child born out of the wedlock. Since she was not having any source of income, she has made an application for grant of maintenance before the Chief Judicial Magistrate, Vidisha. On the frivolous allegations, the applications have been filed by the respondent for grant of divorce and custody of infant child under the Guardians & Wards Act. It will be difficult for the petitioner to attend the said proceedings, therefore, the same may be transferred to the competent Court at Vidisha. It is also contended that in fact as per the law laid-down by the Apex Court, the application under Sections 7 & 8 of the Guardians & Wards Act would lie only at a place where the ward is residing and not at the place where the father is residing or where the marriage has been solemnized. Therefore, it is contended that the Family Court at Bhopal will have no jurisdiction to try the said application. On these counts, it is contended that aforesaid cases are liable to be transferred.

(3.) Per contra it is submitted by learned Counsel for the respondent that this application itself is not maintainable in view of sub-clause (3) of of the Code of Civil Procedure and, therefore, liable to be dismissed on this count. It is contended that District Vidisha falls under the jurisdiction of Gwalior Bench of this Court and subordinate to the Bench at Gwalior for the purposes of relief claimed under Section 24 of the Code of Civil Procedure. It is contended that in view of this, the application itself is liable to be dismissed. It is further contended that as per the provisions of Section 21-A of the Hindu Marriage Act, 1955, if an application is made at Vidisha under Section 125 of the Code of Criminal Procedure for grant of maintenance, the same is liable to be transferred to Bhopal and the cases at Bhopal are not liable to be transferred to Vidisha. It is contended that the application under Section 125 of the Code of Criminal Procedure pending at Vidisha was presented later and the petition for divorce was filed much before by the respondent at Bhopal. Therefore, it is contended that the present M.C.C. is not maintainable. In detailed reply submitted by the respondent, it is contended that no case is made out to order any transfer as the petitioner herself was responsible for all such illegal acts. In fact the petitioner was not living properly with the respondent/husband and ever since after the birth of his elder son, she was trying to go to Vidisha to live separately. After great difficulty, she came back to live with the respondent and after the birth of second son, again the petitioner left the matrimonial house and went to Vidisha. This being the situation, the respondent was left with no option but to file an application for grant of divorce before the Court at Bhopal, which Court had the jurisdiction to entertain such petition. To pressurize the respondent, the petitioner has filed an application under Section 125 of the Code of Criminal Procedure at Vidisha and this is how the claim is now made for transfer of the cases. Since the younger son is living with the petitioner, the respondent has made an application for giving his custody to the respondent under the Guardians & Wards Act and such an application has rightly been entertained by the Family Court, Bhopal. It is contended that in view of this, the transfer of cases as sought by the petitioner is not justified. There is no inconvenience to the petitioner to come and attend the cases at Bhopal and as such the application is liable to be dismissed.