Husband's Attempt To Shift Case After Obtaining Ex-Parte Divorce Reflects 'Ulterior Motive To Delay': Allahabad High Court

The Allahabad High Court has held that the husband himself filing for divorce in one Court and after the decree seeking transfer of recall proceedings to another city shows his ulterior motive to cause delay in conclusion of divorce proceedings.

Justice Syed Qamar Hasan Rizvi held,

“The conduct of the applicant to prefer the Family Court at Gonda for instituting the proceeding and thereafter to make request for transfer of the subsequent proceeding emanating from the same to the Family Court at Lucknow, is reflective of his ulterior motive to cause delay in the proceeding.”

Applicant no.1-husband, had earlier filed for divorce before the Family Court at Gonda. The marriage was dissolved vide an ex-parte decree against which the wife preferred a recall application. During the pendency of the recall proceedings, the husband approached the High Court seeking transfer of proceedings from Gonda to any District Court in Lucknow on grounds that a stay was granted on the divorce decree without hearing him.

Further, he alleged that when he was leaving the Family Court in Gonda after attending proceedings, he was attacked by 4 men who allegedly threatened him to not be seen in the premises of the District Court, Gonda. It was also stated that both parties were residing in Lucknow and it would be more convenient for them to attend the proceedings. Favouritism towards the wife by the Presiding Officer, Family Court, Gonda was also alleged by the husband.

Holding the allegations against the Presiding Officer, Family Court, Gonda as baseless, the Court observed

“A general statement to the effect that the concerned court is doing favour to the other side, is not sufficient for the purpose of establishing any bias. Needles to say that while dealing with the case, the Presiding Officer of the Court has to pass several orders depending upon the facts of the case and as the circumstances warrant. In that process, orders adverse to the party cannot be the reason to doubt the fairness of the Presiding Officer and the parties do have legal remedies to challenge the same before the higher forums.”

The Court relied on the decision of the Supreme Court in the case of Kumaon Mandal Vikas Nigam Ltd. Versus Girja Shankar Pant and others where it was held that allegations of bias must be supported with cogent evidence and cannot be mere general statements.

Regarding attacks on the applicant-husband, the Court held that there was no material to show threat and the proceedings could not be transferred unless threat was shown through material evidence.

Further, the Court held that since the parties had been regularly contesting the divorce proceedings in Gonda despite living in Lucknow since 2019, it would not serve the interest of justice to transfer the proceedings at this late a stage.

“It is trite in law that transfer of a case can be made only when the same is reasonably required under the facts and circumstances of the case and only if the allegations made by the applicant seeking transfer of the proceedings are straightway discovered or found to be adversely affecting the interest of justice. Further, a petition seeking transfer of the case should not be based on conjectures and surmises and the onus is on the person who alleges bias to substantiate that the apprehensions are reasonable, genuine and justifiable. There must be cogent evidence available on record to infer the existence of any element of bias.”

Noting that the wife had never raised a ground of inconvenience in attending proceedings in Gonda, the Court dismissed the application of transfer of proceedings.

Case Title: Nagendra Sharma And Another Versus The State Of U.P. Through Principal Secretry Home Civil Secretariat Lucknow And Another [TRANSFER APPLICATION (CIVIL) No. - 225 of 2025]

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