Case Note & Summary
The dispute involved a transfer petition filed by the petitioner-wife seeking to relocate a divorce suit from West Bengal to Uttar Pradesh. The parties, both doctors, were married on January 17, 2017, with no children from the marriage. The petitioner-wife resided with her parents in Shamli, Uttar Pradesh, where she had also initiated maintenance proceedings. The respondent-husband did not contest the transfer petition, as no counter affidavit was filed despite service of notice. The core legal issue was whether the divorce suit should be transferred for the convenience of the petitioner-wife, considering her residence and related legal actions in Uttar Pradesh. The petitioner argued for transfer based on her residence and the pendency of maintenance proceedings, while the respondent did not present any arguments due to non-appearance. The court analyzed the averments and found it appropriate to allow the transfer, emphasizing the petitioner's residence and the need to facilitate her access to justice. The court held that the transfer was justified under its inherent powers, ordering the divorce suit to be moved from the Family Court in Burdwan, West Bengal, to the Family Court in Shamli, Uttar Pradesh. The decision included directions for immediate transfer of records and a provision for the respondent to seek modification if service issues were later discovered. The transfer petition was disposed of accordingly, with all pending applications also resolved.
Headnote
A) Family Law - Transfer of Matrimonial Cases - Convenience of Wife - Hindu Marriage Act, 1955, Section 13 - The petitioner-wife sought transfer of a divorce suit from West Bengal to Uttar Pradesh where she resides with her parents and has filed a maintenance petition. The Court considered her residence and related proceedings, allowing the transfer to ensure convenience and access to justice. Held that transfer is appropriate as the wife resides in Shamli, U.P., and has pending maintenance proceedings there, facilitating her participation in the case. (Paras 1-3) B) Civil Procedure - Transfer of Cases - Inherent Powers - Code of Civil Procedure, 1908 - The Court exercised its inherent powers to transfer the divorce suit, noting the respondent-husband's lack of contest and service of notice. The transfer was ordered to the Family Court in Shamli, U.P., with directions for record transfer and a provision for modification if service issues arise. Held that the transfer petition is allowed, and the respondent may seek recall within three months if notice service is defective. (Paras 4-5)
Issue of Consideration
Whether the divorce suit pending in West Bengal should be transferred to Uttar Pradesh for the convenience of the petitioner-wife
Final Decision
The transfer petition is allowed. MAT Suit No 454 of 2018 is transferred from Principal Judge (ADJ – V), Family Court Burdwan, West Bengal to Family Court, Shamli (U.P.). Records to be transferred forthwith. Respondent may seek modification/recall within three months if service issues exist. Petition disposed of.
Law Points
- Transfer of matrimonial cases under inherent powers
- convenience of parties
- residence of petitioner
- pendency of related proceedings
