Wife's Convenience, Child's Welfare Relevant But Can't Automatically Justify Transfer Of Matrimonial Case: Allahabad High Court

The Allahabad High Court has held that the convenience of the wife and the welfare of a minor child, though relevant considerations in matrimonial disputes, are not inflexible or overriding grounds for transfer of proceedings under Section 24 of the Code of Civil Procedure, 1908. It held that the decisive test is whether refusal of transfer would occasion a failure of justice, and that the burden of establishing genuine hardship lies on the applicant.Dr. Justice Yogendra Kumar Srivastava held,“Though the convenience of the wife and the welfare of a minor child are undoubtedly relevant considerations in matrimonial disputes, they cannot be treated as inflexible or overriding considerations divorced from the facts of the individual case. The decisive test is whether refusal of transfer is likely to occasion a failure of justice.”The applicant-wife sought transfer of a petition for restitution of conjugal rights filed by her husband under Section 9 of the Hindu Marriage Act, 1955 from the Family Court at Aligarh to the Family Court at Gautam Budh Nagar. She submitted that she was residing at Gautam Budh Nagar as the primary caregiver of her minor daughter, who was studying there, and repeated travel to Aligarh would cause her inconvenience and financial burden and affect the child's education and welfare. She also relied on the pendency of a maintenance petition under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the Family Court at Gautam Budh Nagar, urging that a single forum would avoid parallel proceedings and multiplicity of litigation.Opposing the application, the husband submitted that both the applicant's parental home and her maternal home were in Aligarh and the transfer was sought only to delay the Section 9 petition. It was submitted that Aligarh was itself a well-established educational centre and the wife's choice to have her daughter educated elsewhere could not dictate the forum of adjudication. It was also submitted that the Section 9 proceedings had remained stalled on account of the transfer application and the interim protection operating in it.Relying on Anjana Rana v. Navin Singh, it was argued that the jurisdiction under Section 24 CPC is discretionary and must be exercised sparingly, and that the husband, being dominus litis, was ordinarily entitled to the forum he had chosen.The Court held that the burden lay on the applicant to establish, by cogent and convincing material, that continuing before the court of institution would occasion genuine hardship or result in failure of justice.“The power of transfer under Section 24 of the Code of Civil Procedure is intended to advance the ends of justice and not to enable a litigant to secure a forum of personal convenience.”The Court observed that no material had been placed to show that attending the Family Court at Aligarh was impracticable or would deprive the applicant of an opportunity to contest the proceedings. Accordingly, it held that mere inconvenience or additional travel could not, absent compelling circumstances, sustain the exercise of power under Section 24 CPC.On the pending maintenance case, the Court held that avoidance of multiplicity of litigation is a relevant consideration but neither conclusive nor determinative.“The proceedings under Section 9 of the Hindu Marriage Act, 1955 and those under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 are distinct in their nature, scope and object, and the mere pendency of such proceedings before different Courts does not, in the absence of demonstrable prejudice, likelihood of conflicting adjudications or any other compelling circumstance affecting the administration of justice, warrant their consolidation before a common forum.”The Court held that Section 24 does not exist to facilitate forum shopping or to permit transfer merely because another forum may be comparatively more convenient.“While the convenience of the wife, the welfare of a minor child and the pendency of connected proceedings are undoubtedly relevant considerations in matrimonial disputes, none of these factors, either individually or collectively, constitutes an inflexible rule mandating transfer. The Court is required to undertake a holistic assessment of all relevant circumstances, including the convenience of both parties, the nature of the proceedings, the availability of evidence, the stage of the litigation and the likelihood of prejudice being caused by refusal of transfer. Equally, due weight must be accorded to the right of the plaintiff, as dominus litis, to prosecute proceedings before a forum otherwise competent in law.”The Court dismissed the transfer application. It directed the Principal Judge, Family Court, Aligarh to proceed expeditiously and endeavour to conclude the matter in accordance with law.Case Title: P vs. V 2026 LiveLaw (AB) 521Case Citation: 2026 LiveLaw (AB) 521Counsel for Applicant :- Abhishek GuptaCounsel for Opposite Party :- Gunjan YadavClick Here...

Wife's Convenience, Child's Welfare Relevant But Can't Automatically Justify Transfer Of Matrimonial Case: Allahabad High Court

Upasna Agrawal

The decisive test is whether refusal of transfer is likely to occasion failure of justice, Court said.

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Upasna Agrawal

Wife's Convenience, Child's Welfare Relevant But Can't Automatically Justify Transfer Of Matrimonial Case: Allahabad High Court

Upasna Agrawal

The decisive test is whether refusal of transfer is likely to occasion failure of justice, Court said.

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INR 1099+GST

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Upasna Agrawal

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