# Smt. Shalinee Dubey @ Radhika Dubey v. Abhishek Tripathi @ Gopal

- **Citation:** (2022) 5 ILRA 1273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-23
- **Case number:** Civil Misc. Transfer Application No. 704 of 2021
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shalinee-dubey-radhika-dubey-v-abhishek-tripathi-gopal-48481
- **Pages:** 4

## Headnote

(i) Civil Law - Civil Procedure Code, 1908 -
Section 24, Criminal Procedure Code,1973
- Section 125 - Hindu Marriage Act, 1955 -
Sections 13(a)(i)a & 24 - Domestic
Violence Act, 2005 - Section - 12 - Transfer
Application - for transfer of Divorce Petition from
one city to anr. - in which case Applicant
appeared and duly received maintenance U/s 24
of Act, 1955 on month to month basis - in the
light of judgment of Hon'ble Apex Court i.e.
Abhilasha Gupta's case - no any interference is
warranted on the ground of distance & financial
stress specially wherein the proceedings are
pending at the final stage - hence transfer
application is liable to be dismissed. (Para - 5,
7)

(i) Civil Law - Civil Procedure Code, 1908 -
Section
24
-
Criminal
Procedure
Code,1973 - Section 125 - Hindu Marriage
Act, 1955 - Sections 13(a)(i)a & 24 -
Domestic Violence Act, 2005 - Section - 12
- Transfer Application - in case of threat
perception - no interference is required for
transferring the Divorce petition - liberty is
given to the applicant to move application
before SSP for security - only for the date of
appearance - direction accordingly. (Para - 9)

Transfer Application Dismissed. (E-11)

List of Cases cited:-

## Text

5 All. Smt. Shalinee Dubey @ Radhika Dubey Vs. Abhishek Tripathi @ Gopal
1273
----------
(2022)05ILR A1273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J

Civil Misc. Transfer Application No. 704 of 2021

Smt. Shalinee Dubey @ Radhika Dubey
 ...Applicant
Versus
Abhishek Tripathi @ Gopal
 ...Opposite Party

Counsel for the Applicant:
Sri Chaman Aara, Sri Shiv Vilas Mishra

Counsel for the Opposite Party:
Sri Shreesh Srivastava

(i) Civil Law - Civil Procedure Code, 1908 -
Section 24, Criminal Procedure Code,1973
- Section 125 - Hindu Marriage Act, 1955 -
Sections 13(a)(i)a & 24 - Domestic
Violence Act, 2005 - Section - 12 - Transfer
Application - for transfer of Divorce Petition from
one city to anr. - in which case Applicant
appeared and duly received maintenance U/s 24
of Act, 1955 on month to month basis - in the
light of judgment of Hon'ble Apex Court i.e.
Abhilasha Gupta's case - no any interference is
warranted on the ground of distance & financial
stress specially wherein the proceedings are
pending at the final stage - hence transfer
application is liable to be dismissed. (Para - 5,
7)

(i) Civil Law - Civil Procedure Code, 1908 -
Section
24
-
Criminal
Procedure
Code,1973 - Section 125 - Hindu Marriage
Act, 1955 - Sections 13(a)(i)a & 24 -
Domestic Violence Act, 2005 - Section - 12
- Transfer Application - in case of threat
perception - no interference is required for
transferring the Divorce petition - liberty is
given to the applicant to move application
before SSP for security - only for the date of
appearance - direction accordingly. (Para - 9)

Transfer Application Dismissed. (E-11)

List of Cases cited:-

1. Abhilasha Gupta Vs Harimohan Gupta (2021
(9) SCC 730),

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
applicant and Mr. Shreesh Srivastava,
learned counsel for the opposite party.

2. Learned counsel for the applicant
submitted that applicant is residing at
District Etawah. She has also filed Case
No. 301 of 2019, under Section 125 Cr.P.C
and Case No. 227 of 2019, under Section
12 of Domestic Violence Act at there. He
next submitted that only to harass the
applicant, opposite party has filed Divorce
Petition No. 46 of 2019 before the Principal
Judge, Family Court, Auraiya. He further
submitted that while she was visting at
Auraiya alongwith her father, she was
misbehaved and threatened to face dare
consequences. For which, applicant has
also moved an application before the
Senior Superintedent of Police, Auraiya.
Lastly, he submitted that under such facts
and circumstances, direction may be issued
to Court below to transfer her case from
Auraiya to Etawah.

3. Mr. Shreesh Srivastava, learned
counsel
for
the
opposite
party
has
vehemently opposed the submission of
learned counsel for the applicant and
submitted that applicant is still residing at
District Auraiya, which may be verified
from the correspondence between the
applicant and S.S.P., Auraiya. Further,
pursuant to her alleged application before
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
S.S.P., Auraiya, no FIR has been lodged.
He next submitted that in the divorce
petition, applicant has also filed written
statements and testimony of P.W.-1 and
P.W.-2 have also been recorded. He further
submitted that during the pendency of
divorce petition, applicant has filed an
application under Section 24 of Hindu
Marriage Act, 1955 (hereinafter referred to
as Act, 1955) for pendente lite maintenance
and litigation expenses, which was partly
allowed
vide
order
dated
6.4.2021.
Opposite party is paying the litigation
expenses to the applicant as directed by the
Court below vide order dated 6.4.2021. He
also submitted that except the testimony of
defence witnesses, nothing remains to be
recorded for adjudication of the case. In
support of his contention, he has placed
reliance upon the judgment of the Apex
Court in the case of Abhilasha Gupta vs.
Harimohan Gupta reported in 2021 9 SCC
730 decided on 24.9.2021 in which Apex
Court has taken the view that once the
application under Section 24 of Act, 1955
is allowed and case is at the verge of final
decision, no interference is required.

4. In his rejoinder argument, learned
counsel for the applicant submitted that she
is facing problem in appearing before the
Family Court, Auraiya, but he could not
dispute this fact that she is receiving the
litigation expenses upon her application
under Section 24 of Act, 1955 as directed
by this Court vide order dated 6.4.2021.

5. I have considered the rival
submissions of learned counsel for the
parties and perused the record as well as
judgment of Apex Court. Facts of the case
are undisputed that applicant has filed
written statements before the Court below
and testimony of P.W.-1 & P.W.-2 have
also been recorded. It is also not disputed
that
applicant
is
receiving
litigation
expenses on month to month basis awarded
by the Court below vide order dated
6.4.2021 upon her application under
Section 24 of Act, 1955. In the matter of
Abhilasha Gupta (Supra), the very same
controversy is before the Apex Court in
which Apex Court has refused to interfere
the transfer application. The said judgment
of Apex Court dated 24.9.2021 is being
quoted hereinbelow:-

"The present petition has been
filed by the petitioner- wife praying inter
alia for transfer of a petition for divorce
filed by the respondent-husband under
Section 13(a) (ia) of the Hindu Marriage
Act, 1955 bearing H.M. Case No. A-130 of
2019
titled
"Harimohan
Gupta
vs.
Abhilasha Gupta", pending before the
Court of the Additional District and
Sessions Judge, Susner, Madhya Pradesh
to the Family Court at Kota, Rajasthan.
Counter affidavit in opposition to the
present petition has been filed by the
respondent.

Ms.
Ranu
Purohit,
learned
counsel for the respondent- husband states
that the divorce petition filed by the
respondent-husband is at an advance stage.
She draws the attention of this Court to the
date-wise tabulated statement Signature
Not Verified Digitally signed by Dr.
Mukesh Nasa Date: 2021.09.29 17:35:56
IST Reason: enclosed with the counter
affidavit, marked as Annexure R-1 and
states that the evidence of the husband has
concluded and the wife has not cited any
other witness except for herself. The matter
was last listed on 06.08.2021, for recording
her testimony but due to the stay order
granted in the present proceeding on
20.07.2021, the said matter has been
adjourned.
5 All. Smt. Shalinee Dubey @ Radhika Dubey Vs. Abhishek Tripathi @ Gopal
1275

The
learned
counsel
further
stated that the distance between present
place of residence of the petitioner-wife
and the Family Court at Kota, Rajasthan is
less than 200 kilometers and offers that the
respondent-husband is willing to pay the
expenses
towards
commuting
to
the
petitioner-wife to enable her to appear
before the learned Family Court at Kota,
Rajasthan for expeditious conclusion of her
evidence and final arguments.

The learned counsel for the
respondent-husband draws the attention of
this Court to the order dated 14.10.2019,
passed by the learned Court of the
Additional District and Sessions Judge,
Susren, Madhya Pradesh which recorded
the request of the petitioner-wife to the
effect that she may be paid a sum of Rs.
3,000/- (Rupees Three Thousand only) as
transportation charges to appear in the
Court alongwith an attendant.

Having regard to the advance
stage of the divorce petition filed by the
respondent-husband against the petitioner-
wife at Kota, this Court is not inclined to
allow the present petition. However, it is
deemed
appropriate
to
direct
the
respondent-husband to pay a sum of Rs.
4,000/- (Rupees Four Thousand Only) to
the petitioner-wife for appearance on each
date of hearing before the Court of
Additional District and Sessions Judge,
Susren,
Madhya
Pradesh,
towards
transportation charges.

The transfer petition is disposed
of with the aforesaid orders. Interim order
dated 20.07.2021 stands vacated."

6. From the perusal of the aforesaid
judgment, it is apparent that present
controversy is squarely covered with the
judgment of Apex Court in the case of
Abhilasha Gupta (Supra).

7. Once the applicant has moved
application under Section 24 of Act, 1955,
which was allowed and uninterrupted
litigation expenses is paid to her, she
cannot move transfer application on the
ground of distance and financial stress.
Similarly, in case the proceedings is at the
verge of final hearing, any interference in
transfer application would only delay the
proceedings.
Therefore,
under
such
circumstances, no interference is warranted
and transfer application is liable to be
dismissed.

8. Accordingly, in light of facts
mentioned hereinabove as well as law
settled by the Apex Court, transfer
application lacks merit and is accordingly,
dismissed. No order as to costs.

9. However, in case of threat
perception, liberty is given to the applicant
to move application before the S.S.P.,
Etawah alongwith order of this Court for
security for the date of appearance. In case,
any such application is moved before the
S.S.P., Etawah, he shall provide ample
security to applicant or other witnesses on
the date of their appearances before the
Principal Judge, Family Court, Auraiya.

10. This order of security shall be
confined to only dates of appearance of
applicant and other witnesses before the
Court and not for any other purpose.

11. Principal Judge, Family Court,
Auraiya is directed to make all endeavour
to decide the aforesaid case maximum
within a period of three months from the
date of production of certified copy of this
order.
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)05ILR A1276
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 02.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal Defective No. 718 of 2021

Mashkoor Hasan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri R.K. Ojha (Senior Advocate), Sri S.B.
Singh

Counsel for the Respondents:
Sri A.K. Roy (Addl. C.S.C.), Sri Arvind
Kumar Pandey

A. Service Law - Appointment/Selection -
Uttar
Pradesh
Secondary
Education
Services Selection Board Rules, 1998 -
Rule 13(4) - After a candidate from the
select list joins service, the selection
process comes to an end and the waiting
list cannot be acted upon as the post
stands filled up. (Para 10)

B. Jurisdiction - The Joint Director of
Education, even after a direction was
issued by this Court for consideration of
the representation filed by the appellant,
did not have the jurisdiction to direct for
appointment of the appellant as the same
is contrary to law. (Para 8)

In case the appointed candidate had left
service thereafter, no person from the
waiting
list
could
be
offered
appointment and that too about 18
years after the selection process was
carried out. The order passed by the Joint
Director of Education being totally illegal, the
same has rightly been stayed by learned
Single Judge. (Para 8)
The candidate at Sr. No. 1 in the merit list
namely, Dr. Dinesh Vashishth was issued
appointment letter on July 16, 2008 and he
joined as Principal of the College on July 19,
2008. However, in the year 2011, he left the
job and had gone back to his parent
institution, where he was working prior to his
appointment and joining as Principal of the
College. He retired on July 31, 2020 after
attaining the age of superannuation. (Para 9)

In an appeal filed by Dr. Dinesh Vashishth,
against the order dated 03.09.2008, the order
passed by learned Single Judge was set aside
on 25.09.2008 with a request to the learned
Single Judge to decide the writ petition
expeditiously.
It
was
observed
in
the
aforesaid order that the life of the select list
would continue till the decision of the writ
petition. (Para 13)

There is no quarrel with the proposition
of law that with the joining of a
candidate in the select list, the process
of selection is complete and the waiting
list cannot be acted upon. No rules were
cited to show about the validity of a select
list. Only reference was made to the
observation made by the Division Bench
of this Court in Special Appeal No. 1282
of 2008, wherein it was recorded that the
select list would remain valid till the decision
of the WP filed by the Sudhir Kumar Gupta,
who was at Sr. No. 2 in the merit list
questioning the appointment of Dr. Dinesh
Vashishth who was at Sr. No. 1 in the merit
list. The present appellant was nowhere in
the picture. The aforesaid order could
have relevance to the claim of Sudhir
Kumar
Gupta,
for
appointment
as
Principal
and
not
for
any
other
candidate. (Para 7, 14)

Even otherwise, in the case in hand, the select
list was notified on September 29, 2003 and
appointment on the post was sought and
offered to the appellant in the year 2020-21.
The claim made by the appellant to the post, in
the aforesaid
factual matrix
by filing a
representation and then a WP in the year 2020,
was otherwise also highly belated. The post in
question was vacated by Dr. Dinesh Vashishth in
the year 2011. (Para 15)