Safiya Malik

The High Court of Allahabad Single Bench of Justice Syed Qamar Hasan Rizvi dismissed a husband’s plea to shift ongoing recall proceedings from the Family Court at Gonda to a court at Lucknow, leaving the matter to continue at Gonda with no order on costs. The dispute arose after the wife moved the Family Court to set aside an ex parte divorce decree and restore the matrimonial case, which the husband sought to have transferred on grounds including apprehension and convenience. The Court found that the husband, having initiated the divorce litigation at Gonda, was seeking transfer only after the decree, indicating an intent to prolong the conclusion of the divorce-related proceedings.

The application was instituted under Section 24 of the Code of Civil Procedure seeking transfer of pending proceedings from the Family Court at Gonda to a competent Family Court at Lucknow. The dispute arises out of matrimonial proceedings between the first applicant–husband and the second opposite party–wife.

Also Read: Evidence Act | Incriminating Material Handed Over By Accused During Police Check Not Section 27 “Discovery”: Supreme Court

The husband had earlier instituted a divorce petition under Section 13 of the Hindu Marriage Act, 1955 before the Principal Judge, Family Court, Gonda, which culminated in an ex parte decree of divorce dated 16 January 2019. Subsequently, the wife filed an application under Order IX Rule 13 read with Section 151 CPC seeking recall of the ex parte decree along with an application for condonation of delay. The recall application was registered as Miscellaneous Case No. 52 of 2019 and an interim order staying operation of the divorce decree was passed on 29 May 2019.

The applicants sought transfer of the recall proceedings on grounds of alleged bias of the Family Court at Gonda, apprehension of physical harm to the husband, and convenience, asserting that both parties were residing at Lucknow. The opposite party resisted the transfer plea, contending that the application was intended to delay the proceedings and suffered from suppression of material facts, including dismissal of earlier challenges to the interim order and withdrawal of an appeal on the same subject matter.

The Court examined the three principal grounds urged for transfer. On the allegation of judicial bias, the Court observed that “there is nothing on record to establish any bias on the part of the learned Presiding Officer” and further recorded that “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.” The Court stated that adverse orders passed in the course of proceedings cannot by themselves justify apprehension regarding fairness, noting that parties have legal remedies to challenge such orders.

With regard to the contention that the Family Court at Gonda unlawfully entertained the recall application and passed the interim order dated 29.05.2019, the Court noted that the said order had already been challenged by the applicants in Writ-C No. 6354 of 2022, which was dismissed by this Court on 18.10.2024. It recorded that “with the dismissal of the said writ petition, the allegation of unlawful entertainment of the proceeding… has been shattered.”

On the plea of apprehended threat to the applicant, the Court observed that “no credible material has been placed by the applicants before this Court to substantiate the same.” It further stated that “mere allegation without any credible evidence cannot be taken as granted to transfer the proceedings from one place to another.”

Addressing the ground of convenience, the Court recorded that the divorce proceedings had been instituted by the applicant himself at Gonda and that the recall proceedings had been pending since 2019 and were “almost ripe up for final disposal.” It observed that transferring the matter at this stage “may cause unnecessary delay in the disposal of the case and would adversely affect the interest of justice.”

The Court also referred to settled legal principles that no hard-and-fast rule governs transfer petitions and stated that “convenience for the purposes of transfer means the convenience of the parties and of course the best interest of litigation.” It further recorded that the conduct of the applicant in seeking transfer after having chosen the forum initially reflected an ulterior motive to delay the proceedings.

Also Read: Persistent Defiance Of Bail Surety Guidance: Allahabad High Court Warns Contempt Action Against Judicial Officers For Imposing Excessive Bail Sureties

The Court recorded that it “does not find any good ground to accept the prayer made by the Applicants for transfer of the proceedings. The present Application filed by the applicants under Section 24 of C.P.C. is hereby dismissed.” The Court further directed that there shall be “no order as to cost.”

Advocates Representing the Parties

For the Applicants: Sri Anurag Singh Chauhan, Advocate; Ms. Ananya Singh Chauhan, Advocate; Ms. Shameem Jahan, Advocate
For the Respondents: Sri Amrendra Nath Tripathi, Senior Advocate assisted by Sri Vijaya Nandan Mani Tripathi, Advocate; Sri Abhishek Kumar Pandey, Additional Chief Standing Counsel; Sri Mohammad Kaseem, Standing Counsel

Case Title: Nagendra Sharma and Another v. State of U.P. and Another 

Neutral Citation: 2025: AHC-LKO:82682

Case Number: Transfer Application (Civil) No. 225 of 2025

Bench: Justice Syed Qamar Hasan Rizvi