Matrimonial Case Can't Be Transferred On Gound Of Distance/ Financial Stress If Plea U/S 24 HMA Has Already Been Allowed: Allahabad HC

The Allahabad High Court has observed that once an application under S. 24 of the Hindu Marriage Act, 1955 [Maintenance pendente lite and expenses of proceedings] has been allowed and uninterrupted litigation expenses are being paid to a party to a matrimonial dispute, he/she cannot move transfer application on the ground of distance and financial stress.

The Bench of Justice Neeraj Tiwari observed thus as it took into account the decision of the Supreme Court in the case of Abhilasha Gupta vs. Harimohan Gupta 2021 9 SCC 730, wherein the Apex Court had taken the view that once the application under Section 24 of Act, 1955 is allowed and the particular matrimonial dispute is at the verge of the final decision, the transfer application can't be allowed.

The case in brief

In the instant case, one Shalinee Dubey had moved to the High Court with her transfer application seeking transfer of divorce proceedings from the Family Court, Auraiya to a Court in Etawah, where she is presently residing.

It was her primary submission that she has already moved applications under Section 125 CrPC and under Section 12 of the Domestic Violence Act in Etawah, however, only to harass her, the opposite party/her husband had filed a Divorce Petition before the Principal Judge, Family Court, Auraiya.

Under such facts and circumstances, she sought direction for the transfer of the divorce case from Auraiya to Etawah.

On the other hand, the counsel for the opposite party opposed her application by submitting that during the pendency of the divorce petition, she had filed an application under Section 24 of Hindu Marriage Act, 1955 seeking pendente lite maintenance and litigation expenses.

It was further submitted that when the said application has been allowed and the opposite party is already paying the litigation expenses to her, there was no need to transfer the case on the ground of distance and financial stress.

High Court's order

At the outset, the Court perused the judgment of the Apex Court in Abhilasha Gupta (supra) and observed thus:

"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 are on 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."

Accordingly, the transfer application was DISMISSED. However, in case of threat perception, liberty was given to the applicant to move an 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," the court further ordered.

Case title - Smt. Shalinee Dubey @ Radhika Dubey v. Abhishek Tripathi @ Gopal

Case Citation: 2022 LiveLaw (AB) 144

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