Ayushi Tripathi Vs Ashutosh Tripathi

Neutral Citation No. - 2025:AHC-LKO:27110

Court No. - 8

Case :- TRANSFER APPLICATION (CIVIL) No. - 270 of 2024

Applicant :- Ayushi Tripathi Opposite Party :- Ashutosh Tripathi Counsel for Applicant :- Adarsh Srivastava,Akhand Pratap Singh Counsel for Opposite Party :- Diwakar Singh Gautam

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the applicant and Shri Diwakar Singh Gautam, learned counsel for the respondent.

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Learned counsel for the petitioner submits that the rejoinder affidavit has been uploaded on portal, yesterday.

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The record indicates that the rejoinder affidavit is not available on portal. Accordingly, the registry is directed to ensure that the rejoinder affidavit is uploaded on portal, forthwith.

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The instant petition under Section 24 C.P.C. has been preferred by the petitioner seeking transfer of Case No.998 of 2024 (Ashutosh Tripathi Vs. Ayushi Tripathi) filed under Section 13 of the Hindu Marriage Act pending before the Principal Judge, Family Court, Lucknow to the appropriate court in District Deoria.

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The submission of learned counsel for the applicant is that applicant and the respondent

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were married on 8.12.2020. On account of matrimonial discord, the applicant was living separately from 16.2.2024 and since then she is residing at her parental home in District Deoria. It is specifically stated in paragraph 5 of the petition that the applicant has instituted the petition under Section 125 Cr.P.C. bearing Case No.297 of 2024 which is engaging the attention of the Principal Judge, Family Court at Deoria. It was also stated in paragraph 6 that another set of proceedings were initiated on 15.4.2024 by the applicant under Section 9 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "D.V.Act" ). The applicant has also filed an F.I.R. in Deoria which was registered as Case Crime No.15 of 2024.

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It is urged that in order to harass the applicant, the respondent has initiated proceedings under Section 13 of the Hindu Marriage Act which is engaging the attention of the Principal Judge, Family Court, Lucknow bearing Case No.998 of 2024. It is further urged that the distance between Lucknow and Deoria is around 350 kms. and it is not feasible for the applicant to context the proceedings at Lucknow as she has no independent source of income and it is difficult to travel considering the hardship faced by the applicant and her child' safety who is aged about 2-1/2 years. In such circumstances, transfer of the proceedings under Section 13 of the Hindu marriage Act has been prayed.

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Learned counsel for the respondent on the other hand, has submitted that the applicant has not approached this Court with clean hands inasmuch as in the present petition which was filed on 28.11.2024, in paragraph 5, it was stated that the applicant had filed a petition under Section 125 Cr.P.C. which was pending before the Principal Judge, Family Court at Deoria. A similar averment was also made in paragraph 8 indicating that two cases i.e. one under Section 125 Cr.P.C. and the other under D.V.Act, both are pending before the respective courts in Deoria and accordingly, the petition filed by the respondent under Section 13 of the Hindu Marriage Act may also be transferred to District Deoria.

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The emphasis is that on the date of filing of this petition by then the petition under Section 125 Cr.P.C. had already been decided vide judgement and order dated 7.9.2024, a copy of which has been brought on record as Annexure No.A-2 with the counter affidavit.

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It is further urged that in the proceedings initiated by the respondent, the applicant has put in appearance and she had also filed another application under Section 24 of the Hindu Marriage Act registered as Misc. Case No.415 of 2024 on 3.9.2024 and in the said petition, the applicant had not disclosed the fact that she has also filed an application under Section 125 Cr.P.C. seeking maintenance. It is thus urged that the applicant has not disclosed the true and correct facts and is

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not entitled to the discretionary remedy of transfer.

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Learned counsel for the applicant while refuting the aforesaid submissions, has pointed out that the applicant has filed a rejoinder affidavit after serving a copy of the same to the learned counsel for the respondent wherein the aforesaid facts have been disclosed.

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Considering the aforesaid and submissions and considering the documents filed by the applicant alongwith rejoinder affidavit, another issue that comes to light is that the instant transfer application was preferred on 28.11.2024 as noticed above and prior thereto i.e. on 16.11.2024, the applicant had filed an application before the Principal Judge, Family Court at Deoria seeking execution of the order granting maintenance. This fact was also not disclosed in petition rather once these issues were raised by the respondent that it has come before the court in rejoinder affidavit.

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Considering the fact that the issue in question relates to the transfer coupled with the fact that the applicant has not disclosed true and correct facts, accordingly this Court is of the view that insofar as the concealment is concerned, the applicant can be penalised by fixing appropriate costs, however, insofar as the substantive proceedings under Section 13 of the Hindu Marriage Act is concerned which is pending at

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Lucknow and it is an undisputed fact that the applicant is residing in Deoria with her 2 and a half years old child. Moreover, the petitioner has neither disclosed the pendency of the application under Section 24 of the Hindu Marriage Act filed at Lucknow nor sought any relief in this regard but the proceedings being on off shoot of the proceedings under Section 13 of the Hindu Marriage Act., hence this court in its inherent powers also takes note of the said case under Section 24 of Hindu Marriage Act pending before Principal Judge, Family Court at Lucknow for consideration.

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In the given circumstances, considering the dictum of the Apex Court in Leena Mukherjee Vs. Rabi Shankar Mukherjee reported in 2002 (10) SCC 480, Pratibha Khemka Vs. Sanjay Kumar Khemka reported in 2004 (13) SCC 686, Neelm Kanwar Vs. Devinder Singh Kanwar reported in 2000 (1) SCC 589 and N.C.V. Aishwarya Vs. A.S. Saravana Karthik reported in 2022 SCC OnLine SC 1199 wherein it has been held that the preference of venue would be given to the lady, this Court finds that it is appropriate to transfer Case No.998 of 2024 (supra) pending under Section 13 of the Hindu Marriage Act and the petition under Section 24 of the Hindu Marriage Act pending before the Principal Judge, Family Court at Lucknow to the appropriate court in District Lucknow.

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Accordingly, the petition is allowed. The

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Principal Judge, Lucknow shall transfer the record of seeking transfer of Case No.998 of 2024 ( Ashutosh Tripathi Vs. Ayushi Tripathi) filed under Section 13 of the Hindu Marriage Act and the petition under Section 24 of the Hindu Marriage Act to the Principal Judge, Family Court at Deoria who upon receipt of the record alongwith copy of this order, shall after affording full opportunity of hearing to the parties but without granting any unnecessary adjournments shall decide the matter, as expeditiously as possible preferably within a period of one year from the date of receipt of the record.

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Despite having allowed the petition, this Court is of the clear view that the applicant has not disclosed true and correct facts. Even in the light of the decision of the Apex Court in Rajnesh Vs. Neha : (2021) 2 SCC 324 which makes it incumbent on the parties approaching the court to file an affidavit and disclose all necessary pleadings including the details of the litigation going on between the parties and on amount of maintenance granted in any of the proceedings and in the instant case, the petitioner has not candidly disclosed.

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For the aforesaid reasons, this Court finds that the applicant should deposit costs of Rs.15,000/- with the Principal Judge, Family Court at Deoria within a period of two weeks from today. Once the respondent appears before the Principal Judge at Deoria, the amount as

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aforesaid, shall be released in his favour. In case the amount is not paid, then the Court shall get the same recovered from the petitioner and then she may be permitted to contest the proceedings or else it may proceed against her ex parte for not complying with this order.

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The petition is accordingly allowed in terms of above.

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Order Date :- 8.5.2025

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Shukla

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Digitally signed by :- ASHUTOSH KUMAR SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Ayushi Tripathi v. Ashutosh Tripathi

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Ayushi Tripathi v. Ashutosh Tripathi

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