HIGH COURT OF JUDICATURE AT ALLAHABAD TRANSFER APPLICATION (CIVIL) No. - 74 of 2023 Court No. - 37 HON'BLE CHANDRA KUMAR RAI, J. 1. Heard counsel for the applicant/wife and Mr. Dubey Amit Kumar Devendra Nath, learned counsel for opposite party/ husband. 2. Brief facts of the case are that applicant is wife and opposite party is husband. A petition under Section 13 (1) (a) of the Hindu Marriage Act, 1955 filed on behalf of the opposite party/husband is pending in the Family Court at Ghaziabad. 3. The instant transfer application has been filed for the following relief:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the instant transfer application of the applicant and be pleased to transfer the divorce petition No.2815/2021 "Anshul Tyagi Versus Smt, Shivani Tyagi" under Section 13(1) (I-A) of Hindu Marriage Act, 1955 from the Additional Principal Judge Family Court, Ghaziabad to the competent court either District Saharanpur or District Muzaffar Nagar having proper equal or superior jurisdiction for just and fair decision of the case in the interest of justice and be pleased to direct the court concerned. to send the record of the aforesaid case before the court concern otherwise the applicant shall suffer irreparable loss and injury" Versus Counsel for Applicant(s) : Karuna Srivastava, Santosh Kumar Srivastava Counsel for Opposite Party(s) : Amul Kumar Tyagi, Dubey Amit Kumar Devendra Nath, Prabhat Kumar Singh Smt. Shivani Tyagi .....Applicant(s) Anshul Tyagi .....Opposite Party(s) 4. This Court entertained the matter on 27.1.2024 and stayed the further proceeding of case under Section 13 (1) (a) of Hindu Marriage Act which is quoted as under ;- "Heard learned counsel for the applicant in support of this application. This is a Transfer Application made on behalf of the wife seeking transfer of Case No. 2815 of 2021, Anshul Tyagi Vs. Smt. Shivani Tyagi, under Section 13(1)(1-A) of Hindu Marriage Act, from the Additional Principal Judge, Family Court, Ghaziabad to the Family Court at Saharanpur or Muzaffar Nagar. The submission of learned Counsel for the applicant is that post estrangement, the applicant has instituted proceedings before the Family Court at Roorkee District Haridwar in the State of Uttarakhand and another case under Section 9 of the Hindu Marriage Act also before the Additional Principal Judge, Family Court, Roorkee district Haridwar. It is argued that the applicant has no source of income of her own and stays with her parents at Roorkee. In these circumstances, it is not possible for the applicant to defend outstation proceedings at a far off station like Ghaziabad. The proceedings instituted by the opposite party at Ghaziabad, therefore, ought to be transferred to an adjoining district like Saharanpur which would give some relief to the applicant in defending the said proceedings. It is also urged that convenience of the wife about the venue in a matrimonial cause has to be accorded priority. Admit. Issue notice. Notice is made returnable on 27.02.2023. Steps be taken both ways within a week. List for orders on 27.02.2023 along with a report regarding TACL No. 74 of 2023 2 service and the postal track attached. Until further orders, the proceedings of Case No. 2815 of 2021, Anshul Tyagi Vs. Smt. Shivani Tyagi, under Section 13(1)(1-A) of Hindu Marriage Act, pending in the Court of Additional Principal Judge, Family Court, Ghaziabad shall remain stayed. " 5. In pursuance of the order dated 27.1.2024 of this Court, parties have exchanged their pleadings. 6. Counsel for the applicant submitted that proceeding initiated by opposite party/ husband in the Family Court Ghaziabad should be transferred to competent Court either District Saharanpur or District Muzaffarnagar. He placed the averment made in paragraph Nos. 8, 9, 10, 11, 12, 13, 14 of the affidavit filed in support of the instant transfer application in order to demonstrate that proceeding pending before Family Court Ghaziabad should be transferred either to Saharanpur or Muzaffarnagar. 7. On the other hand, learned counsel for the opposite party/ husband submitted that no case for transfer is made out from the pleading made in the instant transfer application. He submitted that divorce petition was filed in the year 2021 and the instant transfer application has been filed in the year 2023 in order to linger on the proceeding in the Court. He submitted that transfer application should be dismissed. 8. I have considered the arguments advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that divorce petition filed by opposite party/ husband is pending in the Family Court Ghaziabad. 10. In order to appreciate the controversy involved in the matter, the perusal of paragraph Nos. 8, 9, 10, 11, 12, 13, 14 of the affidavit will be relevant which are as under:- "8. That after come to know about filing the divorce petition, the applicant has filed a Misc. Application under Section 24 of Hindu TACL No. 74 of 2023 3 Marriage Act claiming expenses of Advocate fees, Convince charges as well as interim maintenance Rs.50,000/- on 14.7.2022.. For kind perusal of this Hon'ble Court Certified copy of application under Section 24 of Hindu Marriage Act filed by the applicant is being annexed here with and is marked as Annexure No.5 to this affidavit. 9. That by perusal of order sheet it is made clear that the Applicant has appeared with the divorce case on 18.5.2022 and also filed Misc. Application under Section 24 of Hindu Marriage Act on 14.7.2022 and the aforesaid case along with Misc. Application of the applicant has been transferred from Principal Judge Family Court Ghaziabad to Additional Principal Judge Family Court No.1 Ghaziabad since then the aforesaid case is pending and further date was fixed for written statement on 16.12.2022. For kind perusal of this Hon'ble Court True/certified copy of complete order sheet of divorce petition No.2815/2022 is being annexed here with and is marked as Annexure No.6 to this affidavit. 10. That the applicant is house wife and not doing any work. She is residing with her parents in the District Roorkee. 11. That the parents of the applicant are Senior Citizen and both are suffering from old age diseases and her brother was outside of District Roorkee doing private work and maintaining the parents as well as applicant except that no any source of income is available for doing pairvi of divorce petition pending before Additional Principal Judge Family Court No.1 Ghaziabad. 12. That the opposite party and his family members were thrown out to the applicant from her matrimonial house due to demand of dowry in which the parents of the applicant has given enough dowry at the time of her marriage. Therefore the applicant has filed application under Section 9 of Hindu Marriage Act before the Additional Court Roorkee but the Opposite Party never cooperated with the applicant and also not doing conjugal rights, the aforesaid case under Section 9 of Hindu Marriage Act is still pending before the Additional Family Court Roorkee. TACL No. 74 of 2023 4 13. That when the Opposite party not cooperated and also not paid any maintenance to her hence the applicant has filed an application under Section 125 of Cr.P.C. bearing Case No.23/2021 "Smt. Shivani Tyagi Versus Anshul Tyagi before the Additional Family Court Roorkee, Haridwar on 25.1.2021 for maintenance. Thereafter in counter blast the Opposite Party has filed Divorce Petition No.2815/2021 "Anshul Tyagi Versus Smt. Shivani Tyagi" under Section 13(1)(I-A) of Hindu Marriage Act on 12.11.2021 which is still pending before the Additional Principal Judge Family Court No.1 Ghaziabad for harassment to the applicant. 14. That the applicant is unable to attend the Divorce Case No.2815/2021 "Anshul Tyagi Versus Smt. Shivani Tyagi pending before Additional Principal Judge Family Court No.1 Ghaziabad because the parents of the applicant are senior citizen and suffering from old age disease and his sole brother is residing out of District for livelihood of the family including the applicant Spurt of District Ghaziabad which is about 130 kilometer away from District Roorkee." 11. In view of the averment made in the affidavit filed in support of the transfer application as quoted above demonstrate that prayer made for transfer of the divorce petition from Ghaziabad to Saharanpur or Muzaffarnagar is genuine. 12. Apex Court in the case reported in (2016) 14 Supreme Court Cases 356 Vaishali Shridhar Jagtap Vs. Shridhar Vishwanath Jagtap has transferred the proceeding of divorce petition filed by husband to the place where wife reside. Paragraph No.1 to 7 of the judgment rendered in Vaishali Shridhar Jagtap (Supra) will be relevant for perusal which are as under :- "Leave granted. 2. The appellant is the wife of the respondent. She is aggrieved since the High Court of Bombay declined to transfer the case, filed in Mumbai by the respondent for divorce, to Barshi where the appellant resides- parental home. The Review Petition was also dismissed. The High Court has taken the view that the appellant does not have to travel on TACL No. 74 of 2023 5 all days for defending the case, and on the days of her travel, she will be paid a sum of rupees one thousand five hundred. 3. According to the appellant, her mother is aged and it is difficult for her mother to accompany the appellant for her travel to Mumbai. It is also stated that there are three criminal cases - one for maintenance, the second under the Prevention of Domestic Violence Act, 2005 and the third under Section 498A of The Indian Penal Code, 1860 and other related provisions, pending at Barshi, and one on the civil side for restitution. 4. The learned Counsel appearing for the respondent has vehemently opposed the prayer for transfer. It was submitted that the appellant’s mother is only 60 years old and that she has two brothers. It is also pointed out that majority of the witnesses are from Mumbai and it would be difficult for them to travel to Barshi, and, in any case, the attempt is to harass the respondent-husband. 5. Admittedly, the distance between Mumbai and Barshi is around 400 kilometres. Four cases between the parties are pending at Barshi. Apparently, the comparative hardship is more to the appellant-wife. This aspect of the matter, unfortunately, the High Court has missed to take note of. 6. In view of the above, the impugned orders are set aside and the M. J.Petition No. 2287 of 2013 filed by the respondent-husband in Family Court Bandra, Bombay will stand transferred to the court of competent jurisdiction at Barshi. 7. The appeals are allowed as above. There shall be no orders as to costs." 13. Considering the entire facts and circumstances of the case, the instant transfer application is allowed. The proceeding of case No. 2815 of 2021 Anshul Tyagi Vs. Shivani Tyagi under Section 13(1)(a) of the Hindu Marriage Act, 1955 pending in the Court of Additional Principal Judge Family Court Ghaziabad is transferred to Principal Judge Family Court Muzaffarnagar. The Family Court Ghaziabad is TACL No. 74 of 2023 6 directed to transmit the records of case No. 2815 of 2021 Anshul Tyagi Vs. Shivani Tyagi to the Court of Principal Judge Family Court Muzaffarnagar. The Family Court Muzaffarnagar, is directed to decide the case No. 2815 of 2021 Anshul Tyagi Vs. Shivani Tyagi under Section 13 (1)(a) of the Hindu Marriage Act, 1955, expeditiously preferably within period of three months after affording opportunity of hearing to the parties. September 8, 2025 Vandana Y. TACL No. 74 of 2023 7 (Chandra Kumar Rai,J.) Digitally signed by :- VANDANA YADAV High Court of Judicature at Allahabad