Wife's Residence In Another District For Child's Schooling Cannot Be Sole Ground To Transfer Matrimonial Case: Allahabad High Court

"The jurisdiction under Section 24 of the Code of Civil Procedure is discretionary in nature and is required to be exercised sparingly, with circumspection and only where the ends of justice demonstrably so require. The provision is not intended to facilitate forum shopping or to permit a litigant to seek transfer merely because another forum may be comparatively more convenient." Allahabad High Court, in a significant ruling dated July 30, 2026, held that a wife's decision to reside in a different district solely for the schooling of a minor child cannot be treated as an inflexible ground to transfer matrimonial proceedings.

A bench of Dr. Yogendra Kumar Srivastava observed that the power of transfer under Section 24 of the Code of Civil Procedure, 1908 is meant to advance the ends of justice and not to enable a litigant to secure a forum of personal convenience.

The case arose from a transfer application filed by the wife under Section 24 CPC, seeking to shift a restitution of conjugal rights petition filed under Section 9 of the Hindu Marriage Act, 1955 from the Family Court at Aligarh to the Family Court at Gautam Budh Nagar. The applicant contended that she was residing in Gautam Budh Nagar as her minor daughter was pursuing education there, making travel to Aligarh burdensome. She also pointed out the pendency of a maintenance petition under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 at Gautam Budh Nagar.

The primary question before the court was whether the applicant had established the existence of genuine hardship, compelling inconvenience, or exceptional circumstances warranting the exercise of discretionary jurisdiction under Section 24 CPC. The court was also called upon to determine whether the pendency of maintenance proceedings in another district justifies the transfer of matrimonial suits.

Discretionary Power Under Section 24 CPC

The court observed that the statutory power of transfer is designed strictly to prevent a failure of justice and cannot be invoked as a matter of routine convenience. The burden lies squarely on the applicant to demonstrate through cogent and convincing material that continuing the trial in the chosen forum will cause genuine hardship.

"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."

Welfare Of Child And Personal Choice

Addressing the ground regarding the minor child's education, the bench acknowledged the paramount importance of a child's welfare. However, it cautioned that a parent's choice to reside elsewhere for schooling cannot be elevated into an overriding universal rule that dictates the forum of adjudication.

"While 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."

Multiplicity Of Proceedings Not Decisive

On the issue of parallel proceedings, the court held that the mere pendency of maintenance under Section 144 BNSS in a different district does not automatically warrant consolidation or transfer. The court emphasized that proceedings under Section 9 of the Hindu Marriage Act and maintenance petitions are distinct in nature and scope, and their pendency in separate courts does not cause inherent prejudice without concrete proof.

"Though avoidance of multiplicity of litigation is a relevant consideration while exercising jurisdiction under Section 24 CPC, it is neither conclusive nor determinative."

Dominus Litis Principle And Holistic Assessment

The bench reiterated that a plaintiff, acting as dominus litis, is ordinarily entitled to choose the forum for instituting legal proceedings. The court must balance the convenience of both parties, the availability of evidence, and the stage of litigation before disturbing a lawfully chosen forum.

"Unless the applicant establishes that continuance of the proceedings before the existing forum would occasion genuine hardship or result in denial of a fair and effective opportunity to prosecute or defend the case, the forum lawfully chosen by the plaintiff ought not to be disturbed as a matter of routine."

Finding that the applicant failed to demonstrate any actual deprivation of a fair opportunity to contest, the Allahabad High Court dismissed the transfer application. The interim order was vacated, and the Principal Judge, Family Court, Aligarh was directed to expedite the proceedings under Section 9 of the Hindu Marriage Act, 1955.

Date of Decision: 30 July 2026