# Smt. Shakshi Agrawal v. Sri Ashutosh Agrawal Opp. Party

- **Citation:** (2022) 2 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-04
- **Case number:** Civil Misc. Transfer Application No. 185 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shakshi-agrawal-v-sri-ashutosh-agrawal-opp-party-48122
- **Pages:** 10

## Headnote

A. Civil Procedure Code,1908 - Section 24
- Transfer of cases - Matrimonial disputes
- Divorce petition of the husband filed at
Gautam Budh Nagar - Two cases was
pending inter parties in Prayagraj - Held,
convenience of the wife is to be accorded
preference in the matter of venue of
proceeding in causes matrimonial - The
relevant factor about the wife not having
anyone to accompany her across a long
distance, is also a relevant consideration
in
ordering
transfer
-
High
Court
transferred the Divorce case from Gautam
Budh Nagar to Prayagraj. (Para 24)
Transfer application allowed. (E-1)
List of Cases cited:

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES
revisionist not only failed to adhere to the
proviso to Rule 17 of Order VI CPC by
stating reason that despite due diligence the
fact pleaded was not within the knowledge
and could not be raised earlier but is also
barred by Order II, Rule 2 CPC as the suit
filed by the plaintiff did not include the
whole claim which the plaintiff was
entitled to make in respect of the cause of
action.

21. The present amendment is a fresh
cause of action and by the amendment, the
suit for damages cannot be amended.
Moreover, the relief, which is being
claimed
by
the
revisionist
through
amendment, was available to him when the
suit for damages was filed by him on
10.12.2014 as the lease agreement had
already expired on 31.10.2014 and the
plaintiff could have claimed the relief for
arrears of rent and ejectment, but he chose
to press the relief of damages on the basis
of Clause 3(c) of the lease agreement,
which had come to an end on 31.10.2014.

22. Thus, this Court finds that post
amendment in Order VI, Rule 17 CPC,
which was brought in the year 2002, the
party seeking amendment has to adhere to
the proviso while making an application in
case of commencement of trial. It is not
disputed to either of the parties that after
framing of issues in the year 2016, 2 issues
had already been decided and the oral
evidence of plaintiff has already concluded.
It is well settled that Section 17 of Act,
1887 provides that provisions of Code of
Civil Procedure is applicable in the matters
dealt by the Judge Small Cause Court under
the Act, 1887.

23. Considering the facts and
circumstances of the case this Court finds
that the Trial Court had rightly rejected the
amendment application of the revisionist as
it does not disclose any reason for filing the
same post-commencement of trial, which is
against proviso to Order VI Rule 17 CPC.

24. No interference is therefore
warranted in the impugned order. Revision
fails and is hereby dismissed.
----------
(2022)02ILR A386
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Misc. Transfer Application No. 185 of 2020

Smt. Shakshi Agrawal ...Applicant
Versus
Sri Ashutosh Agrawal ...Opp. Party

Counsel for the Applicant:
Sri Pankaj Kumar Ojha

Counsel for the Respondents:
Ms. Shreya Gupta, Sri Ravi Anand Agarwal

A. Civil Procedure Code,1908 - Section 24
- Transfer of cases - Matrimonial disputes
- Divorce petition of the husband filed at
Gautam Budh Nagar - Two cases was
pending inter parties in Prayagraj - Held,
convenience of the wife is to be accorded
preference in the matter of venue of
proceeding in causes matrimonial - The
relevant factor about the wife not having
anyone to accompany her across a long
distance, is also a relevant consideration
in
ordering
transfer
-
High
Court
transferred the Divorce case from Gautam
Budh Nagar to Prayagraj. (Para 24)
Transfer application allowed. (E-1)
List of Cases cited:
1. Manjula Singh Chouhan Vs Vishal Singh
Chouhan; 2019 (13) SCC 660
2 All. Smt. Shakshi Agrawal Vs. Sri Ashutosh Agrawal
387
2.
Bhartiben
Ravibhai
Rav
Vs
Ravibhai
Govindbhai Rav; 2017 (6) SCC 785
3. G.R. Bhuvaneshwari Vs G.S. Puttaraju; 2018
(13) SCC 650
4.
Vaishali
Shridhar
Jagtap
Vs
Shridhar
Vishwanath Jagtap; 2016 (14) SCC 356
5. Sumita Singh Vs Kumar Sanjay & anr.; AIR
2002 SC 396
6. Transfer Application (Civil) No. 468 of 2013;
Smt. Pinki Rani @ Priyanka Vs Raj Kumar,
decided on 02.12.2014.
7. Mona Aresh Goel Vs Aresh Satya Goel; 2000
(9) SCC 255
8. Anindita Das Vs Srijit Das; (2006) 9 SCC 197
9. Kanagalakshmi Vs A. Venkatesan; 2004 (13)
SCC 405
10. Teena Chhabra Vs Manish Chhabra; 2004
(13) SCC 411
11. Shiv Kumari Devanndra Ojha Vs Ramajor
Shitla Prasad Ojha & ors.
12. Santhini Vs Vijaya Venketesh; 2018 (1) SCC
1
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a transfer application on
behalf of the wife under Section 24 C.P.C.,
seeking transfer of Case No. 1326 of 2019,
Ashutosh Agrawal vs. Shakshi Agrawal,
under Section 12 (1)(b) and (c) read with
Section 5 of the Hindu Marriage Act, 1955
from the Principal Judge, Family Court,
Gautam Budh Nagar to the Principal Judge,
Family Court, Allahabad.

2. Parties have exchanged affidavits
and the matter was heard elaborately on
22.09.2021, when the judgment was
reserved.

3. Heard Mr. Pankaj Kumar Ojha,
learned counsel for the applicant and Ms.
Shreya Gupta, learned counsel appearing
on behalf of the opposite party.

4. The applicant and the opposite
party are an estranged couple. They were
married according to Hindu rites on June
the 8th, 2019 at NOIDA, District Gautam
Budh Nagar. The applicant stayed with the
opposite party in their matrimonial home at
Gautam Budh Nagar, but complaints of
cruelty,
including
physical
violence,
appeared early into the marriage. It appears
that the opposite party is employed as a
Senior Manager in the Human Resource
Development, Department of Honda Car
India Limited. He is said to draw a salary
of Rs. 90,000/- per month. The applicant's
father-in-law is also claimed to be gainfully
employed. There are allegations also about
dowry demand and torture in order to
extract more dowry. It is not the province
of this Court to go into those allegations,
but whatever has transpired between the
applicant and the opposite party, their
marriage has run into rough weather.

5. The Opposite Party instituted a
petition in the Family Court, Gautam Budh
Nagar, under Section 12(1)(b) and (c) read
with Section 5 of the Hindu Marriage Act,
seeking a decree for annulment on the
ground that the Applicant was of unsound
mind, a condition that her family knew but
misrepresented,
practicing
fraud
and
deception to induce the opposite party into
marrying the Applicant. This petition was
registered on the file of the Principal Jude,
Family Court, Gautam Budh Nagar as Case
No. 1326 of 2019. It is this petition that the
Applicant seeks to be transferred from
Gautam Budh Nagar to the Family Court at
Allahabad.

6. The grounds urged to seek transfer
are that there is a case instituted by the wife
at Prayagraj under Section 125 Cr.P.C.
being Case No. 232 of 2020, besides
another under Section 12 of the Protection
388 INDIAN LAW REPORTS ALLAHABAD SERIES
of Women from Domestic Violence Act,
2005 that is pending before the Additional
Chief Judicial Magistrate, Court No. 7,
Allahabad, numbered as Case No. 1800 of
2020. Details of these cases are set out in
paragraph nos. 17 and 18 of the affidavit
filed in support of the transfer application.

7. The ground culled out on this score
is that since two cases are already pending
inter partes before the Courts at Allahabad,
it would be convenient if the husband's
petition for annulment is also transferred
from Gautam Budh Nagar to the Family
Court at Allahabad, where the parties can
request the Court/Courts concerned to fix a
uniform date. It is pointed out that the
applicant stays at Prayagraj after her
estrangement, and the further ground is that
she is a woman and unemployed, who
cannot travel by herself from Allahabad to
Gautam Budh Nagar on each date fixed in
the petition there. If she is compelled to do
that, her defence will be pre-judicially
affected. It is also indicated, amongst the
adversity of her circumstances that render it
difficult for her to travel from Prayagraj to
Gauam Budh Nagar, that her father is an
old man, who has retired from service. He
suffers from old age ailments. She has no
one to travel with or escort her on every
date from Prayagraj to Gautam Budh
Nagar. It is also averred in paragraph no.
26 of the affidavit filed in support of this
transfer application that the applicant has
apprehensions about her safety, in the event
she were compelled to attend at Gautam
Budh Nagar, because the husband-opposite
party
and
his
family
members
are
politically well connected. Her life would
be in danger.

8. In the counter affidavit filed on
behalf of the opposite party, there is a specific
denial of the various allegations that the wife
has come up with regarding the cause for
estrangement, particularly, about domestic
violence and dowry demand. It is, as earlier
said, not a matter of concern to this Court in
the present proceedings. In paragraph no. 11
of the counter affidavit, the institution and
pendency of the two cases before the Courts
at Allahabad, one under Section 125 Cr.P.C.
and the other under the Domestic Violence
Act, have not been specifically denied in
point of fact. So far as the allegations that the
applicant is an unemployed woman, unable to
travel alone from Prayagraj to Gautam Budh
Nagar is concerned, it is averred in paragraph
no. 14 that the applicant is a self-dependent
woman, who is a dentist by profession. It is
averred that she is self-employed at present. It
is also pleaded in paragraph 14 that it is
incorrect to say that the applicant cannot
travel alone because she is a woman. It is also
asserted that the trivial inconvenience
involved in travel to the wife cannot be
accepted as a ground to transfer the husband's
petition for annulment. There is a like stance
to the wife's case about her father being a
retired man, unable to escort her to Gautam
Budh Nagar on every date scheduled there.
The allegations about political connections of
the husband at Gautam Budh Nagar and the
applicant's perception of threat to her life, if
she attends at Gautam Budh Nagar have been
dispelled on the foot of pleadings in
paragraph no. 12 of the counter affidavit,
where it is said that the husband belongs to a
middle
class
reputed
family.
The
apprehensions expressed are founded on
conjecture. There is an averment in paragraph
no. 18 of the affidavit filed in support of this
transfer application to the following effect:

"That, since the husband of the
applicant and his family was torturing
regularly to the applicant therefore she
moved a case u/s 12 of Domestic Violence
Act before the court of Additional Chief
2 All. Smt. Shakshi Agrawal Vs. Sri Ashutosh Agrawal
389
Judicial Magistrate Room No. 7, Allahabad
as Case No. 1800 of 2020 on 26.05.2020
and same has also pending in the District
Court Prayagraj."

9. In paragraph no. 14 of the rejoinder
affidavit, it is pointed out that the opposite
party, on the one hand, says that the
applicant is a mentally challenged woman,
but on the other, projects her to be an
independent woman fit to travel 800 kms
on every date fixed from Prayagraj to
Gautam Budh Nagar. This stance of the
husband's
has
been
castigated
as
contradictory. It is pleaded that the
applicant is, in fact, unemployed and
considering that she is a woman, it is
unsafe for her to travel all by herself on
each date fixed from Prayagraj to Gautam
Budh Nagar and back.

10. Reliance has been placed by the
learned counsel for the petitioner upon the
decision of the Supreme Court in Manjula
Singh
Chouhan
vs.
Vishal
Singh
Chouhan, 2019 (13) SCC 660, where it
has been held:

"3. As per the submission of the
appellant, two cases are already pending in
Family Court, Bhopal, and it will be in the
interests of both the parties to try all their
cases in Bhopal. Learned counsel for the
respondent, however, submits that it will
suit to the appellant only, therefore, transfer
may not be permitted. The fact remains that
the respondent has to travel to Bhopal for
conduct of other cases pending in Family
Court, Bhopal.

4. We are of the view that it will be in
the interests of both the parties that all their
cases be heard together by the same Court."

11. Again, reliance has been placed on
the decision of the Supreme Court in
Bhartiben Ravibhai Rav vs. Ravibhai
Govindbhai Rav, 2017 (6) SCC 785. In
Bhartiben Ravibhai Rav (supra), it was
held by the Supreme Court thus:

3. The transfer petition is strongly
objected to by the respondent husband on the
ground that he is employed in Ahmedabad
and that he is taking care of his two sons,
apart from his aged parents. The petitioner
wife, on the other hand, contends that the
distance between Ahmedabad and her place
Dungarpur, Rajasthan is about 200 km and
that she finds it difficult to travel to
Ahmedabad to contest the divorce petition.
That apart, the petitioner wife has also raised
difficulty in pursuing the divorce petition in
Ahmedabad
because
of
the
language
problem, as she is not well-acquainted in
Gujarati.

4. Apart from the divorce petition, there
are other proceedings pending between the
parties which have been filed by the
petitioner wife at Dungarpur, Rajasthan viz.
(i) FIR under Sections 498-A and 406 IPC
and under Section 4 of the Dowry Prohibition
Act; (ii) petition under Section 125 CrPC
before
the
Family
Court,
Dungarpur,
Rajasthan, and (iii) petition under Sections 12
and 23 of the Protection of Women from
Domestic Violence Act, 2005 pending before
the Chief Judicial Magistrate, Dungarpur,
Rajasthan. It is stated that the respondent
husband is already appearing in Dungarpur
Court, Rajasthan in connection with the
aforesaid cases instituted by the petitioner
wife and that it may not be difficult for the
respondent husband to pursue the divorce
petition in Dungarpur Court, Rajasthan.
Considering the facts and circumstances of
the case, we feel that the petition could be
transferred to Dungarpur, Rajasthan.

12. Reference has also been made to
the decision of their Lordships of the
390 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court in G.R. Bhuvaneshwari
vs. G.S. Puttaraju, 2018 (13) SCC 650,
where the facts of the case and the remarks
of their Lordships read:

1. ..... This appeal is directed against the
impugned order dated 11-3-2013 passed by the
High Court of Karnataka, at Bangalore, in G.R.
Buvaneshwariv. G.S.
Puttaraju [G.R.
Buvaneshwari v. G.S. Puttaraju, 2013 SCC
OnLine Kar 10559] , whereby the High Court
has declined the prayer of the appellant seeking
transfer of MC No. 21 of 2010 and WC No. 1
of 2010, filed by the respondent (husband),
from the Court of Civil Judge, Senior Division,
Maddur to the Family Court at Mysore.

4. We have taken note of the fact that the
appellant is employed as a teacher and is a
single mother responsible for looking after her
9-year-old son who is studying at a school in
Mysore. Moreover, proceedings in Criminal
Miscellaneous No. 158 of 2011 between the
parties pertaining to maintenance are also
pending at Mysore. Considering these facts, we
are inclined to allow this appeal.

13. Likewise, learned counsel for the
applicant has also relied on the decision of the
Supreme Court in Vaishali Shridhar Jagtap
vs. Shridhar Vishwanath Jagtap, 2016 (14)
SCC 356. It was observed in Vaishali (supra):

5. Admittedly, the distance between
Mumbai and Barshi is around 400 km. 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.

14. Much faith has been reposed in
another decision of the Supreme Court in
Sumita Singh vs. Kumar Sanjay and Anr.,
AIR 2002 SC 396. The facts and the holding in
the decision read:

1. This is a transfer petition by the wife.
She seeks the transfer of matrimonial
proceedings filed by the husband against her in
Ara, Bhojpur to Delhi. It is her case that she is
now living and working in Delhi and that she
would be unable to travel up and down from
Delhi to Ara, a distance of about 1100
kilometres
from
Delhi,
to
defend
the
matrimonial proceedings. She also states that
she has no one with whom she can stay in Ara
because her parents are residents of Gurgaon.

2. Learned counsel for the husband
states that the wife is an educated woman
who is doing very well and can, therefore,
travel to Ara while the husband is
unemployed.

3. It is the husband's suit against the
wife. It is the wife's convenience that,
therefore,
must
be
looked
at.
The
circumstances
indicated
above
are
sufficient to make the transfer petition
absolute.

15. Reliance is also placed on the
decision of this Court in Smt. Pinki Rani
@ Priyanka vs. Raj Kumar, Transfer
Application (Civil) No. 468 of 2013,
decided on 02.12.2014. In Smt. Pinki
Rani @ Priyanka (supra), it was
observed:

12. In the matrimonial matters the
convenience of wife and in particular that
she has no one in her family to escort her to
undertake a long journey has been held to
be good ground for transfer of case as is
also evident from Apex Court's decision in
Anjali
Ashok
Sadhwani
vs.
Ashok
Kishinchand Sadhwani, AIR 2009 SC 1374
and Fatema vs. Jafri Syed Husain @ Syed
Parvez Jafferi, AIR 2009 SC 1773.

19. Sometimes transfer of suit has also
been justified on the ground of convenience
to the parties or witnesses etc. but in such
cases the paramount factor which should be
2 All. Smt. Shakshi Agrawal Vs. Sri Ashutosh Agrawal
391
considered is the convenience of both
parties. An exception, however, to some
extent, has been made in matrimonial cases
where convenience of wife has been given
a
dominating
factor
than
husband,
particularly when she has none to escort her
or of quite young age or where she has
financial constrained etc.

22. Convenience of wife to pursue the
proceedings is a relevant factor if pleaded
bona fide for justifying transfer of a matter
to the place where it is convenient to the
wife. The applicant is not doing any job
having no source of income to bear the
expenses. None is there to escort her to
Ghaziabad from Meerut to do pairavi of the
case. Looking to the facts of the case,
stated above, I am of the view that it is in
the
interest
of
justice
that
transfer
application should be allowed.

16. In Mona Aresh Goel vs. Aresh
Satya Goel, 2000 (9) SCC 255, the facts and
holding of their Lordships read:

2. The transfer petition is filed by the
wife to transfer the divorce proceedings taken
by the husband in Bombay to Delhi, where
she now stays with her parents. The transfer
petition avers that the wife has no
independent income and that her parents are
not in a position to bear the expenses of her
travel from Delhi to Bombay to contest the
divorce proceedings. She avers that she is
twenty-two years old and cannot travel to and
stay in Bombay alone for there is no one in
Bombay with whom she can stay. We are of
the opinion that the transfer petition should,
in the circumstances, be allowed.

3. The transfer petition is made absolute
in terms of prayer (a). MJ Petition No. A-636
of 1999 pending before the Family Court at
Bandra, Bombay is transferred to the Court of
the District Judge, Tis Hazari, Delhi, who
shall hear it himself or assign it for hearing to
a competent court.

17. Ms. Shreya Gupta, learned counsel
for the husband, has stiffly resisted the
proposition that it is always the convenience
of the wife that is the guiding factor in
judging a plea for transfer brought by the
wife. She has very elaborately addressed the
Court about the issue and brought to our
notice the guidance in various decisions of
the Supreme Court that have considered
principles, where a wife's plea for transfer
would not be liable to be accepted. The first
to be noticed on behalf of the respondent is
the decision of the Supreme Court in
Anindita Das vs. Srijit Das, (2006) 9 SCC
197. In the said decision, it was held that if
the husband undertakes to bear the necessary
expenses for the wife's travel and stay, the
ground based on wanting livelihood or source
of income with the wife, would be of no
avail. In Anindita Das (supra), the short
facts and the holding read:

1. This transfer petition has been filed
by the wife on the ground that the
petitioner has a small child of six years.
She has further claimed that she has no
source of income and it is difficult for her
to attend the court at Delhi. She has further
claimed that she is not keeping good health.

2. In support of this petition, a large
number of authorities have been cited,
namely, Reena Bahri v. Ajay Bahri [(2002)
10 SCC 136] , Leena Mukherjee v. Rabi
Shankar Mukherjee [(2002) 10 SCC 480]
, Ram
Gulam
Pandit v. Umesh
J.
Prasad[(2002) 10 SCC 551] and Rajwinder
Kaur v. Balwinder Singh [(2003) 11 SCC
726] . These authorities are all based on the
facts of their respective cases. They do not
lay down any particular law which operates
as a precedent.
392 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Even otherwise, it must be seen that
at one stage this Court was showing
leniency to ladies. But since then it has
been found that a large number of transfer
petitions are filed by women taking
advantage of the leniency shown by this
Court. On an average at least 10 to 15
transfer petitions are on board of each court
on each admission day. It is, therefore,
clear that leniency of this Court is being
misused by the women.

4. This Court is now required to
consider each petition on its merit. In this
case the ground taken by the wife is that
she has a small child and that there is
nobody to keep her child. The child, in
this case, is six years old and there are
grandparents available to look after the
child. The respondent is willing to pay all
expenses for travel and stay of the
petitioner and her companion for every
visit when the petitioner is required to
attend the court at Delhi. Thus, the
ground that the petitioner has no source
of income is adequately met.

5. Except for stating that her health
is not good, no particulars are given. On
the ground that she is not able to come to
Delhi to attend the court on a particular
date, she can always apply for exemption
and her application will undoubtedly be
considered on its merit. Hence, no ground
for transfer has been made out.

18. Again in Kanagalakshmi vs. A.
Venkatesan, 2004 (13) SCC 405, the
short decision of their lordships of the
Supreme Court reads:

1. This is a petition filed by the wife
seeking transfer of pending matrimonial
dispute before the Family Court at
Bandra, Mumbai to the Subordinate
Judge, Tirunelveli, Tamil Nadu on the
ground that it is difficult for her to travel
from Tirunelveli to Mumbai to pursue her
case. Learned counsel appearing for the
respondent husband has filed his counter
stating therein that he is prepared to bear
the expenses not only of the petitioner but
also of her accompanying person both for
travel and stay at Mumbai. Recording the
said statement, we think it is not
necessary to transfer the pending case at
the Family Court, Bandra, Mumbai.
However, we direct the respondent to pay
to the petitioner the travel expenses as
well as for their stay during the dates of
hearing in Mumbai. We direct the Family
Court to dispose of the petition and
applications for interim maintenance if
any within six months from the receipt of
this order and direct the Family Court, if
possible, to cross-examine both the
parties in regard to their affidavit on the
same day.

2. The transfer petition is disallowed.

19. In Teena Chhabra vs. Manish
Chhabra, 2004 (13) SCC 411, it was
observed:

2. At the hearing, the learned counsel
for the respondent husband submitted that
the respondent is ready and willing to bear
the expenses of the petitioner wife from
Chandigarh to Bombay, whenever her
presence is required at Bombay for the
purpose of this case, by second class train
fare.

3. Having regard to the facts and
circumstances of the case, we dismiss this
transfer petition, subject to the condition
that the respondent will bear the travel
expenses of the petitioner from Chandigarh
to Bombay, whenever her presence is
required at Bombay for the purpose of this
case, by second class train fare and rupees
five hundred towards incidental expenses
for lodging and boarding.
2 All. Smt. Shakshi Agrawal Vs. Sri Ashutosh Agrawal
393

20. Still again, in Shiv Kumari
Devanndra Ojha vs. Ramajor Shitla
Prasad Ojha & Ors., the short facts and
holding of their Lordship read:

1. The petitioner has filed this petition
for transfer of proceedings, viz., Succession
Application No. 43 of 1995 along with
Miscellaneous Application No. 23 of 1996
titled Ramajor Shitla Prasad Ojha v. Shiv
Kumari Devendra Ojha pending in the
Court of Civil Judge, Senior Division,
Valsad, Gujarat to the competent court of
Civil Judge at Sadar, District Pratapgarh in
Uttar Pradesh. We had adjourned the matter
by our order dated 9-12-1996 to find out
whether the suit was still pending or stood
disposed of. It is reported that the matter is
still pending and the Civil Judge, Senior
Division is yet to take up the matter. The
learned counsel for the petitioner has stated
that the petitioner being a lady is unable to
travel from Uttar Pradesh to Valsad in
Gujarat and it is really a great difficulty for
her to meet the expenditure in that behalf.
Shri Upadhyay, learned counsel appearing
for the respondents has agreed to bear the
expenditure for her travel and stay
whenever she attends court. Under the
circumstances, we do not find that there is
any justification for transferring the matter
to Pratapgarh, U.P. Whenever the petitioner
goes to the court, the respondents would
pay Rs 750 (Rupees seven hundred and
fifty only) on each occasion to the
petitioner and the amount would be paid to
her in advance. The petitioner would
intimate the Civil Judge, Senior Division
who would direct the respondents to pay
the amount to the petitioner.

2. It is next contended that the
petitioner had to engage her counsel from
Surat since no advocate would be available
at Valsad where the suit is pending. We
think that the apprehension of the petitioner
is not correct. The petitioner is at liberty to
engage counsel at Valsad and the counsel
would give his best to the petitioner in
defending her case. If the petitioner
requires any financial assistance from the
respondents, it would be open to her to file
an application in the Court of Civil Judge,
Senior Division, Valsad for this purpose
and the same would be ordered by the Civil
Judge. The learned Civil Judge is directed
to dispose of the application for restoration
immediately and would simultaneously
take up the main matter and dispose of the
same expeditiously.

21. Depending on these decisions,
learned counsel for the respondent, Ms.
Shreya Gupta, very persuasively submits
that the wife does not have any indefeasible
right to ask the case filed by the husband at
a different station to be moved to a station
where she is located. Rather the difficulty,
if any, that she faces on account of
financial constraints, can be offset by the
husband being required to compensate her
expenses for travel and stay on each day
the cause is scheduled before the Court
where the husband has instituted it.

22. It is, in the last, submitted that the
husband being employed in the NCR, the
interest of both parties will be best served
by requiring the wife's participation in the
hearing through video conferencing.

23. This Court has considered the
rival submissions advanced by parties. So
far as the suggestion to direct hearing at
Gautam
Budh
Nagar
through
Video
Conferencing for the wife is concerned, it
may not accord with the law. Though, it is
a possibility to be seriously considered, if
the law were to permit it. But, the law on
the subject is laid down in Santhini vs.
Vijaya Venketesh, 2018 (1) SCC 1, where
394 INDIAN LAW REPORTS ALLAHABAD SERIES
speaking for the majority, the learned Chief
Justice of India has held:

56. We have already discussed at
length with regard to the complexity and
the sensitive nature of the controversies.
The statement of law made in Krishna Veni
Nagam [Krishna
Veni
Nagam v. Harish
Nagam, (2017) 4 SCC 150 : (2017) 2 SCC
(Civ) 394] that if either of the parties gives
consent, the case can be transferred, is
absolutely
unacceptable.
However,
an
exception can be carved out to the same.
We may repeat at the cost of repetition that
though the principle does not flow from
statutory silence, yet as we find from the
scheme of the Act, the Family Court has
been given ample power to modulate its
procedure. The Evidence Act is not strictly
applicable. Affidavits of formal witnesses
are acceptable. It will be permissible for the
other party to cross-examine the deponent.
We are absolutely conscious that the
enactment gives emphasis on speedy
settlement. As has been held in Bhuwan
Mohan
Singh[Bhuwan
Mohan
Singh v. Meena, (2015) 6 SCC 353 : (2015)
3 SCC (Civ) 321 : (2015) 4 SCC (Cri) 200]
, the concept of speedy settlement does not
allow room for lingering the proceedings.
A genuine endeavour has to be made by the
Family Court Judge, but in the name of
efforts to bring in a settlement or to arrive
at a solution of the lis, the Family Court
should not be chained by the tentacles by
either parties. Perhaps, one of the parties
may be interested in procrastinating the
litigation. Therefore, we are disposed to
think that once a settlement fails and if both
the parties give consent that a witness can
be examined in videoconferencing, that can
be allowed. That apart, when they give
consent that it is necessary in a specific
factual matrix having regard to the
convenience of the parties, the Family
Court
may
allow
the
prayer
for
videoconferencing.
That
much
of
discretion, we are inclined to think can be
conferred on the Family Court. Such a
limited discretion will not run counter to
the legislative intention that permeates the
1984 Act. However, we would like to add a
safeguard. A joint application should be
filed before the Family Court Judge, who
shall take a decision. However, we make it
clear that in a transfer petition, no
direction
can
be
issued
for
videoconferencing. We reiterate that the
discretion has to rest with the Family Court
to be exercised after the court arrives at a
definite conclusion that the settlement is
not possible and both parties file a joint
application or each party filing his/her
consent memorandum seeking hearing by
videoconferencing. (Emphasis by Court)

24. In view of the decision in
Santhini (supra), it is not possible for this
Court to direct the wife to address the
Court or contest the case before the Family
Court at Gautam Budh Nagar through
Video Conferencing. That is a possibility
which the learned Judge, Family Court
could consider, but the present application
is not the proceeding to consider that prayer
in view of the guidance in Santhini. The
preponderant opinion, on the other hand,
that has evolved in latter pronouncement of
their Lordships of the Supreme Court like
those
in
Manjula
Singh
Chouhan,
Bhartiben
Ravibhai
Rav,
G.R.
Bhuvaneshwari,
Vaishali
Shridhar
Jagtap, Sumita Singh appear to favour the
principle that convenience of the wife is to
be accorded preference in the matter of
venue of proceeding in causes matrimonial.
Also, if proceedings have been instituted by
the wife at one station, proceedings
instituted by the husband at another are
favoured for a transfer to the station where
2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
395
the husband, in any case, would have to
appear, to wit, where the wife has brought
proceedings. The question would then be of
a convenient disposition at one station. The
relevant factor about the wife not having
anyone to accompany her across a long
distance, is also a relevant consideration in
ordering transfer. Here, the distance is
about 700 Kms. between Gautam Budh
Nagar and Prayagraj. Two cases are already
pending at Prayagraj and the wife has no
one in her family to act as her escort on
every date that is scheduled before the
Court at Gautam Budh Nagar. The wife,
though well qualified, has not been shown
to be possessed of any gainful occupation
in her profession for the time being. The
handicap that arises from lack of resources,
cannot be always arithmetically calculated
in terms of money spent on travel, lodging
and board. Lack of financial resources
bring many other kinds of handicaps, that
cannot always be liquidated through
taxable recompense.

25. In the opinion of this Court,
therefore,
this
transfer
application
succeeds
and
is
allowed.
The
proceedings of Case No. 1326 of 2019,
Ashutosh Agrawal vs. Shakshi Agrawal,
under Section 12 (1)(b) and (c) read with
Section 5 of the Hindu Marriage Act,
1955 are withdrawn from the Principal
Judge, Family Court, Gautam Budh
Nagar and transferred to the learned
Principal
Judge,
Family
Court,
Allahabad. The Principal Judge, Family
Court, Allahabad, upon receipt of the
record, shall proceed to try and determine
the case himself or make it over for trial
and decision in accordance with law to an
Additional Judge available on the Court,
as he may consider appropriate. The
parties shall appear before the Principal
Judge, Family Court, Allahabad on
28.02.2022. During this period of time,
the
Principal
Judge,
Family
Court,
Gautam Budh Nagar shall ensure that the
records are transmitted to the Principal
Judge, Family Court, Allahabad. The
parties take notice of this order through
learned counsel.

26. Let this order be communicated
to the Principal Judge, Family Court,
Gautam Budh Nagar and the Principal
Judge, Family Court, Allahabad by the
Registrar (Compliance).
----------
(2022)02ILR A395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 2126 of 2020

Uday Narayan Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vikas Tiwari

Counsel for the Respondents:
C.S.C.

A. Pay - Definition of Pay.- Fundamental Rule
9(21) of Fundamental Rules.- Means the amount
drawn by a Government servant as the pay which
has been sanctioned for a post held by him
substantively or in the officiating capacity, or to
which he is entitled because of his position in a
cadre; and includes an overseas pay, special pay
and personal pay; and any other emoluments
which may be specially classed as pay by the
President but does not include the special pay or
pay granted because of the personal qualification
of the Government servant.(Para 25)

B. As per regulation 38(a) of CSR applicable in
U.P., pay means "monthly substantive pay and