No transfer of case on Financial and Distance grounds

Recently, it was reiterated by the Allahabad High Court that when a divorce petition has been filed and the wife is granted the litigation expenses under section 24 of the Hindu Marriage Act 155, then such matrimonial cases cannot be transferred on the ground of distance and financial stress.

Brief Background of the case:

In Shalini Dubey v Abhishek Tripathi, 2021,  the applicant-wife was residing in district Etawah and had filed a case for maintenance under section 125 of the Code of Criminal Procedure as well as section 12 of the Domestic Violence Act. The counsel on behalf of the wife contended that the opposite party, i.e. husband, had filed a divorce petition before the Judge of Family Court in Auraiya. While visiting Auraiya, the applicant-wife misbehaved and threatened to face dire consequences. Based on these circumstances, the applicant’s counsel requested the Court to transfer her case from Auraiya to Etawah.

What are the contentions put forward by both parties?

The counsel of the husband, however, vehemently opposed the contentions made by the applicant and stated that while the divorce petition was pending, the applicant has filed an application for pendent lite maintenance as well as litigation expenses under Section 24 of the Hindu Marriage Act 1955. The Court had also allowed the order under the above-mentioned section by directing the husband to pay the litigation expenses to the wife. 

While putting forward the contentions on behalf of the husband, the learned counsel relied on the judgment of the Supreme Court in the case of Abhilasha Gupta v. Harimohan Gupta, 2019. In this case, Supreme Court took the view that when an application under section 24 of the Hindu Marriage Act has been allowed and the case is pending for final decision, no other interference shall be entertained. Thus the Supreme Court refused to interfere with the transfer application made by the wife with respect to the divorce petition filed by the husband.

The applicant’s counsel failed to disprove the fact that the wife was already receiving litigation expenses from the husband under the order and direction of the Court. The litigations expenses are received by her every month upon her application under section 24 of the Hindu Marriage Act. Lead India offers top-rated lawyers in India to deal with the filing of transfer petitions, divorce petitions, etc., and ensure favourable outcomes.

The counsel of the husband stated that the divorce petition filed by the husband is at an advance stage and any interference in the proceedings will affect the case. Thus husband’s counsel filed a counter-affidavit pertaining that matters on behalf of the husband have concluded and the wife had not cited any other witness except for herself in this case. 

Further, the counsel of the husband stated that as the distance of commuting between the place of residence of the applicant and the Family Court is less and that the husband is willing to pay for the expenses to commute, the petition for transfer of the matrimonial case should not be granted. 

What was held by the Allahabad High Court?

As mentioned earlier, the Allahabad High Court having regard to the advance stage of the divorce petition which has been filed by the husband pending before the Family Court, the petition to transfer the matrimonial case cannot be allowed. However, the husband is directed to pay a sum of Rs 4000/- to the wife for appearing before the Court on each date of the hearing. Thus, the transfer petition is disposed of. 

By interpreting the judgment of the High Court with respect to the present case and relying on the judgment given by the Supreme Court in the case of Abhilasha Gupta it can be implied that when an application is filed under section 24 of the Hindu Marriage Act and has been allowed uninterrupted litigation expenses, then the applicant cannot transfer application on the ground of distance and financial stress.

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