The Allahabad High Court, Lucknow Bench, has dismissed two transfer applications filed by a petitioner seeking to move matrimonial and custody proceedings from the Family Court in Lucknow to Bareilly. The applications were filed against her spouse, citing her job transfer to Bareilly as grounds for the shift. The court, however, ruled that frequent transfers of a spouse in a transferable job do not constitute valid grounds for transferring the case, especially when the applicant’s permanent residence is in Lucknow and their minor child resides there.
Background of the Case:
The transfer applications involved two cases: one relating to child custody under Section 7 read with Section 25 of the Guardian and Wards Act (Case No. 353 of 2023), and the other a divorce petition filed under Section 13 of the Hindu Marriage Act, 1955 (Case No. 4412 of 2022). Both cases are currently being heard by the Principal Judge, Family Court, Lucknow.
The applicant, who serves as HRM Regional Officer at the Bank of Baroda, was posted to Bareilly and sought the transfer of these cases from Lucknow to Bareilly on the grounds of convenience. Her counsel argued that, as per precedents established by the Supreme Court, the convenience of the wife should be a primary consideration when deciding transfer petitions.
However, the opposite party’s counsel opposed the transfer, highlighting that the applicant’s job required frequent transfers, and that Lucknow remained her permanent residence. Furthermore, their minor child, for whom custody is being contested, resides and attends school in Lucknow.
Legal Issues Involved:
The key legal issue centered on whether the wife’s transfer to Bareilly provided sufficient grounds to transfer the cases from Lucknow. The applicant relied on the Supreme Court’s decision in Sumita Singh v. Kumar Sanjay & Anr., which recognized that the wife’s convenience should be taken into account when deciding such petitions.
On the other hand, the counsel for the opposite party cited the applicant’s transferable service as a reason for dismissing the application. He argued that the nature of the applicant’s job, which has led to multiple relocations, does not justify a transfer, especially when the minor child resides in Lucknow. The court was also referred to a Supreme Court ruling in Delma Lubna Coelho v. Edmond Clint Fernandes (2023), where the court noted that transfer petitions, especially in matrimonial disputes, should be scrutinized on a case-by-case basis to prevent potential misuse of leniency extended to wives.
Court’s Decision:
The Justice Subhash Vidyarthi, presiding over the case, dismissed the transfer applications. The court remarked that while the wife’s convenience is an important consideration, the applicant’s frequent transfers undermine the grounds for shifting the case. Since Lucknow is the applicant’s permanent residence and the minor child is based in the city, it was more appropriate for the case to remain there.
Justice Vidyarthi also noted that the divorce and custody matters should ideally be decided in the same court for the sake of judicial efficiency. Referring to the Supreme Court’s judgment in Delma Lubna Coelho v. Edmond Clint Fernandes, the court observed, “Each and every case has to be considered on its own merits. The leniency shown in transfer petitions should not be misused.”
The court further emphasized, “The applicant’s frequent transfers do not provide a good ground for the transfer of the cases from Lucknow to Bareilly, especially since her permanent residence is in Lucknow and the minor child resides there.”
