# Smt. Akansha Saxena v. Shikhar Saxena

- **Citation:** (2026) 2 ILRA 1362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-02
- **Case number:** Transfer Application (Civil) No. 940 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-akansha-saxena-v-shikhar-saxena-54174
- **Pages:** 6

## Text

1362 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Looking to the inconvenience caused to the applicant-wife as discussed herein above, this
court is inclined to levy costs on the opposite party-husband of Rs.50,000/- (Rs. Fifty Thousand) to
be paid to the applicant-wife, who appears to have endured suffering during the pendency of the
present transfer application.

25. Costs as directed shall be paid by the opposite party-husband to the applicant-wife within a
period of one month from today. If the costs are not paid, the same shall be recovered in
accordance with law as arrears of land revenue by the Collector, Agra and shall be paid over to the
applicant-wife. A copy of the receipt/acknowledgement of payment of costs shall be placed before
the Transferee Court by the opposite party-husband.
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(2026) 2 ILRA 1362
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2026

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.

Transfer Application (Civil) No. 940 of 2023

Smt. Akansha Saxena ...Applicant
Versus
Shikhar Saxena ...Opposite Party

Issues for Consideration
(i) Whether transfer of matrimonial proceedings under Section 24 of the Code of Civil Procedure, 1908 can be
allowed on the basis of consent or non-opposition of the opposite party;
(ii) Whether, in matrimonial disputes, the convenience of the wife and attending socio-economic circumstances
justify transfer of proceedings to another jurisdiction.

Headnotes
Civil Procedure Code, 1908 - Section 24 - Transfer of proceedings - Scope and nature of
power:

Held: Section 24 CPC confers wide, discretionary and equitable jurisdiction upon the Court to transfer
proceedings at any stage to secure ends of justice - The power is supervisory and remedial in character and
intended to prevent hardship, inconvenience or failure of justice. [Para 7, 13.1]

Civil Procedure Code, 1908 - Transfer - Dominus litis - Limitation of principle:
Held: Though plaintiff is dominus litis and entitled to choose forum, such right is not absolute - The Court
may override such choice where insistence on chosen forum results in hardship, inequity or denial of access to
justice - Section 24 CPC constitutes statutory exception to the doctrine. [Paras 8, 13.2]

Civil Procedure Code, 1908 - Transfer by consent - Permissibility:
Held: Transfer of proceedings on the basis of consent or non-opposition of the opposite party is legally
permissible - Procedural right to object to forum can be waived - Where parties are ad idem, apprehension
of prejudice stands substantially mitigated. [Paras 9, 13.3-13.4]
2 All. Smt. Akansha Saxena Vs. Shikhar Saxena
1363
Civil Procedure Code, 1908 - Transfer - Consent - Scope of judicial scrutiny:
Held: In consent-based or unopposed transfer applications, necessity for elaborate comparative analysis of
balance of convenience stands diluted - The Court is only required to be satisfied that transfer is lawful, fair
and subserves ends of justice - Detailed reasoning is not mandatory in absence of contest. [Paras 10-11,
13.5-13.6]

Civil Procedure Code, 1908 - Matrimonial disputes - Transfer - Convenience of wife:
Held: In matrimonial matters, convenience of wife deserves priority consideration having regard to socioeconomic realities - Where wife has no independent source of income, is residing with minor child and faces
hardship in travelling long distance, transfer is justified - The overarching test remains advancement of
justice and prevention of hardship. [Paras 12, 13.7-13.8, 14]

Civil Procedure Code, 1908 - Transfer - Application of principles:
Held: Where the applicant-wife resides at Agra with minor child, has no independent income, and the
opposite party does not oppose transfer, and no prejudice is caused to either side, the transfer of proceedings
from Ghaziabad to Agra is justified and in furtherance of justice. [Para 14]

Transfer application allowed. (E-14)

Case Law Cited
-None-

List of Acts / Statutes
Code of Civil Procedure, 1908; Hindu Marriage Act, 1955

List of Keywords
Transfer of proceedings; Consent; transfer; Dominus litis; Matrimonial dispute; Convenience of wife; Balance
of convenience; Access to justice; Hardship; Waiver.

Case Arising From
Matrimonial Petition No. 2130 of 2023 instituted under Section 13 of the Hindu Marriage Act, 1955, pending
before the Court of Additional Family Court No. 5, Ghaziabad.

Appearance for Parties
For the Appellant: Sri Madhav Jain
For the Respondents: Sri Mahesh Narain Singh, Smt. Akansha Saxena

(Delivered by Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Madhav Jain, learned counsel for the applicant and Sri Mahesh Narain Singh,
learned counsel for the opposite party.

2. The present transfer application has been filed by the applicant?wife under Section 24 of the
Code of Civil Procedure, 1908, seeking transfer of Matrimonial Petition No. 2130 of 2023,
instituted by the opposite party under Section 13 of the Hindu Marriage Act, 1955, pending before
the Court of Additional Family Court No. 5, Ghaziabad, to the Court of competent jurisdiction at
Agra.

3. Though the lis arises out of a matrimonial dispute between private parties, the issues which
arise for consideration transcend the individual facts of the case and touch upon the nature, scope,
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
and contours of the jurisdiction exercised by this Court under Section 24 CPC, particularly in cases
where transfer is sought by consent or where the opposite party does not oppose the prayer. The
matter, therefore, calls for a consideration of the applicable legal principles governing exercise of
powers of transfer under Section 24, on the basis of consent of parties.

4. The factual position brought on record indicates that the marriage between the applicant and
the opposite party was solemnized on 18.02.2011 at Agra in accordance with Hindu rites and
rituals. Out of the wedlock, a son was born on 31.01.2020. Due to matrimonial discord, the
applicant is presently residing at her parental home at Agra along with her minor son. It has been
specifically pleaded that the applicant has no regular or independent source of income and is
entirely dependent upon her parents for her sustenance as well as that of the minor child. It has
further been stated, and not disputed, that the opposite party is not paying any maintenance either to
the applicant or to the minor child.

5. The opposite party has instituted Matrimonial Petition No. 2130 of 2023 under Section 13
of the Hindu Marriage Act, 1955, seeking dissolution of marriage, which is pending before the
Court of Additional Family Court No. 5, Ghaziabad. The applicant has asserted that the distance
between Agra and Ghaziabad is approximately 200 kilometers and that repeated travel to
Ghaziabad would cause grave inconvenience, financial strain, and physical hardship, particularly in
view of her limited financial means and her responsibility towards a school-going minor child. It
has also been pleaded that the applicant's father, aged about 65 years, is suffering from serious
ailments and is not in a position to accompany her during such travel. It has further been pointed
out that the opposite party himself is a resident of Agra, where his parental house is also situated.
These facts are not controverted and form the factual substratum of the present application.

6. Significantly, the opposite party has categorically stated before this Court that he does not
wish to oppose the present transfer application. The prayer for transfer is, therefore, not contested
and is, in effect, founded on the consent or at least the unequivocal non-opposition of the opposite
party. This aspect assumes considerable importance, as it has a direct bearing on the nature of
scrutiny required to be undertaken by the Court while exercising its jurisdiction under Section 24
CPC.

7. Section 24 of the Code of Civil Procedure, 1908, confers wide and discretionary jurisdiction
upon the High Court and the District Court to transfer or withdraw any suit, appeal, or other
proceeding at any stage, either on the application of any of the parties or even suo motu. The
provision is couched in broad and enabling language and does not prescribe rigid conditions or
straitjacketed parameters for the exercise of power. The legislative intent underlying Section 24
CPC is to vest the superior courts with sufficient flexibility to ensure fairness of procedure, to avoid
hardship, inconvenience, or oppression, and to secure the proper administration of justice. The
power is remedial, equitable, and supervisory in character and is intended to prevent failure of
justice that may otherwise result from a rigid adherence to procedural form.

8. It is no doubt a settled principle that ordinarily the plaintiff, being dominus litis, has the
right to choose the forum of institution and that such choice is not to be interfered with lightly. This
principle recognises the autonomy of a litigant to prosecute his cause in a forum permitted by law.
2 All. Smt. Akansha Saxena Vs. Shikhar Saxena
1365
However, the doctrine of dominus litis is not an inflexible or absolute rule. Section 24 CPC itself
constitutes a statutory exception to this principle and empowers the Court to override the plaintiff's
choice on an application for transfer by any of the parties or of its own motion. The right of forum
selection cannot be elevated to a position where it defeats substantive justice or imposes undue
hardship upon the opposite party. Where the insistence on the chosen forum results in inequity,
prejudice, or denial of effective access to justice, the doctrine of dominus litis must necessarily
yield in order to prevent hardship and ensure fairness in proceedings.

nothing in the provision prohibits the Court from ordering a transfer where both parties agree
or where the opposite party raises no objection. The provision is enabling and permissive, not
restrictive. Procedural rights, including the right to object to a particular forum, are capable of
being waived. When a party expressly consents to transfer or states that he or she has no objection
to the prayer, the procedural privilege flowing from the principle of dominus litis stands voluntarily
relinquished. In such a situation, the foundational concern of prejudice, which ordinarily animates
contested transfer applications, stands substantially diluted, if not entirely removed.

10. Where parties are ad idem on the question of transfer, the necessity for an elaborate
comparative examination of balance of convenience stands considerably reduced. Consent reflects
a mutual acceptance of the proposed forum and carries with it a presumption that no party
apprehends injustice or disadvantage. In such cases, the Court is not required to engage in a hypertechnical or mechanical exercise of weighing relative inconvenience. A consensual transfer
ordinarily advances the interest of justice by avoiding unnecessary procedural contest, conserving
judicial time, and facilitating expeditious adjudication. Where no legal impediment is shown to
exist, insistence on continuation of proceedings at the original forum serves no substantive or
meaningful purpose.

11. The requirement that judicial orders must be reasoned is well settled. However, the nature
and extent of reasons required depend upon the context and the nature of controversy involved. In
consent-based or unopposed transfer applications, the requirement of recording reasons is
sufficiently met by noting the consent or non-opposition of the parties and the Court's satisfaction
that the transfer is lawful, fair, and does not occasion injustice. The law does not mandate an
elaborate reasoning exercise where the factual foundation of contest is absent and where the parties
themselves invite the Court to exercise its jurisdiction.

12. Matrimonial disputes occupy a distinct position in transfer jurisprudence owing to their
personal nature and the socio-economic realities that attend them. In such matters, the "balance of
convenience" assumes particular significance and must be assessed not in abstract or theoretical
terms but in the context of lived realities. In the Indian socio-economic milieu, it is often the wife
who bears primary responsibility for the care and upbringing of minor children and who is more
likely to be financially constrained or dependent. Courts have, therefore, consistently recognised
that while convenience is a relative concept, the convenience of the wife deserves priority
consideration in matrimonial transfer petitions. This approach is rooted not in any presumption of
preference but in pragmatic considerations of access to justice and fairness. The overarching and
controlling principle remains that the ends of justice must be subserved.
1366 INDIAN LAW REPORTS ALLAHABAD SERIES

13. From the statutory framework and the foregoing discussion, the following general
principles may be stated:

13.1 Section 24 of the Code of Civil Procedure confers wide, discretionary, and equitable
power upon the Court to transfer proceedings at any stage in order to secure the ends of justice.

13.2 The plaintiff's right as dominus litis to choose the forum of institution is subject to
judicial control and may be overridden where adherence to such choice would result in hardship or
injustice.

13.3 Transfer of proceedings by consent or where the opposite party raises no objection is
legally permissible and well within the scope of Section 24 CPC.

13.4 Consent to transfer operates as a voluntary waiver of objection to the forum, and in
such cases, the apprehension of prejudice stands substantially mitigated.

13.5 Where transfer is sought by consent or is unopposed, the necessity for an elaborate
comparative analysis of balance of convenience stands diluted, though the Court must be satisfied
as to the legality and fairness of the transfer.

13.6 In consent-based transfer orders, the requirement of recording reasons is adequately
satisfied by noting the consensual stand of the parties and the Court's satisfaction that the transfer
advances the ends of justice.

13.7 In matrimonial proceedings, having regard to social realities, the convenience of the
wife, particularly where her personal, familial or economic circumstances place her at a
comparative disadvantage, deserves priority consideration.

13.8 The ultimate and controlling test for exercise of power under Section 24 CPC is
whether the transfer prevents hardship and subserves the cause of justice.

14. Applying the aforesaid principles to the facts of the present case, this Court finds that the
applicant-wife resides at Agra with her school-going minor son. It is stated that she has no
independent source of income, and is dependent upon her parents. The distance between Agra and
Ghaziabad would necessitate repeated travel entailing financial strain and physical hardship. The
applicant has also pleaded lack of adequate assistance and the ill-health of her aged father. The
opposite party has categorically stated that he does not oppose the transfer. No prejudice, actual or
apprehended, is shown to be caused to either side. The transfer sought is bona fide, consensual, and
clearly in furtherance of justice.

15. For all the reasons aforesaid, this Court is of the considered opinion that the present case is
a fit one

16. Accordingly, the Civil Misc. Transfer Application is allowed with the following
directions:
2 All. Ratan Buildtech Pvt. Ltd. Vs. Anil Kumar
1367

(ii) Matrimonial Petition No.2130 of 2023, pending before the Court of Additional
Family Court No. 5, Ghaziabad, is hereby withdrawn and transferred to the Court of competent
jurisdiction at Agra.

(iii) The Court at Ghaziabad shall transmit the entire original record of the case to the
transferee court within a period of fifteen days from the date of receipt of a certified copy of this
order.

(iv) The transferee Court shall proceed with the matter from the stage at which it is
transferred and shall endeavour to decide the same expeditiously, in accordance with law.
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(2026) 2 ILRA 1367
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2026

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE JASPREET SINGH, J.

Special Appeal No. 28 of 2026

Ratan Buildtech Pvt. Ltd. ...Appellant
Versus
Anil Kumar ...Respondent

Issue(s) for consideration
 Whether special appeal is maintainable against an order passed u/s 58 of the Real Estate (Regulation and
Development) Act, 2016, before the Division Bench?

Headnotes
A. Real Estate Law - Civil Procedural Law - Real Estate (Regulation and Development) Act, 2016:
Section 58 - Tribunals which are set up in an organised State for the Administration of Justice
are courts and have been described as bodies of men which are appointed to decide
controversies arising under certain special laws. The procedure before the Tribunal and Courts
may differ but the functions are not essentially different. Further, it depends on a particular Act
whether the functions of a particular Tribunal are akin to those of the courts which provide for
the basic administration of justice. (Para 24)

When Company Law Board ('CLB') exercised its powers, it exercised its quasi-judicial power as original
authority, it may not be a court but it has all the trappings of a court. Therefore, CLB, while exercising its
original jurisdiction passed the order and against that order, appeal lies to the learned Single Judge of the
High Court and thereafter no further appeal could be filed. (Para 15)

In the present case, the proceedings were initiated before the Real Estate Adjudicating Officer u/s 31 of the
Act, 2016. A bare perusal of provisions reveals that the Act, 2016 provides for a complete machinery for
adjudication of disputes between promoters and allottees or the real estate agents. The Adjudicating Officer
u/s 35 has the same powers as are vested in a civil court under the CPC, 1908 and the Appellate Tribunal u/s
53(4) has same powers as are vested in civil courts under the CPC in respect of the matters enumerated in