Orissa HC Transfers Wife’s Maintenance Case To Bhubaneswar, Citing Her Job, Ailing Parents And Daughter’s Schooling

In brief

The question

Whether the circumstances pleaded by the wife justified transferring the Section 125 CrPC proceeding from Berhampur to Bhubaneswar under Section 447 BNSS.

The court held

The High Court allowed the transfer petition and directed the Family Court, Berhampur, to transmit the record to the Family Court-I, Bhubaneswar, preferably within seven days of production of a certified copy.

It also directed

The receiving court was directed to proceed in accordance with law, allow virtual appearances with its permission where appropriate, and require physical attendance for effective hearings when ordered; the parties were directed to avoid unnecessary adjournments, with the proceeding to be concluded preferably by the end of June 2027, subject to no legal impediment.

The interim order was vacated and pending interlocutory applications were disposed of.

01Facts

The wife sought transfer under Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), of her maintenance proceeding under Section 125 of the Code of Criminal Procedure, 1973, from the Family Court, Berhampur, to the Family Court-I, Bhubaneswar.

p. 1 · ¶ 1

She submitted that she had moved to Bhubaneswar for employment, lived with her aged and ailing parents, and cared for her four-year-old daughter, who attended school there; she contended that travelling to Berhampur would cause hardship and that her husband, then residing in Bengaluru, would suffer no undue prejudice.

pp. 2–3 · ¶ 4–6

The husband opposed transfer, relying on the delay in filing, the absence of supporting documents concerning the wife’s employment and daughter’s schooling, and material indicating that the wife’s evidence had been closed.

pp. 4–5 · ¶ 7–7.2

02Issues

i.Whether the circumstances pleaded by the wife justified transferring the Section 125 CrPC proceeding from Berhampur to Bhubaneswar under Section 447 BNSS.

p. 1, 6 · ¶ 1, 9

ii.Whether the delay in seeking transfer and the asserted lack of supporting evidence and risk of delay outweighed the wife’s claimed hardship and the husband’s circumstances.

pp. 4–6 · ¶ 7–9

03Law Applied

Section 447 BNSS provides the basis invoked for seeking transfer of the proceeding.

p. 1 · ¶ 1

In assessing transfer requests in matrimonial matters, the court applied the principle stated in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199: the ends of justice govern transfer, and the court should consider the parties’ economic and social circumstances, standard of life, livelihood, and sources of support; given the prevailing socio-economic context, the wife’s convenience must generally be considered.

p. 5 · ¶ 8

The wife’s convenience is a paramount consideration, but not necessarily the sole determining factor.

p. 5 · ¶ 7.2

Provisions in the judgment · 3 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 447

Code of Criminal Procedure, 1973 Section 125

Code of Civil Procedure, 1908 Section 24

04Reasoning

The Court considered the wife’s employment and residence at Bhubaneswar, her responsibility for her minor daughter’s educational needs, and her care of her aged and ailing parents as circumstances that, taken together, justified transfer.

p. 6 · ¶ 9

It also found that transfer would cause the husband no undue prejudice because he resided in Bengaluru.

p. 6 · ¶ 9

The Court held that the delay in filing the petition and the objections concerning documentary support did not outweigh the circumstances favouring transfer.

p. 6 · ¶ 9