Transfer of Matrimonial Proceedings : It is the Convenience of the Wife, which has to be looked at [Case Law]
Civil Procedure Code, 1908 - S. 24 & 25 - Hindu Marriage Act, 1954 - Section 9 - Cases relating to transfer of matrimonial proceedings, it is the convenience of the wife, which has to be looked at.
Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
CMPMO No. 140 of 2018
Date of decision: 31.05.2018
Kanta Devi v. Sita Ram
For the Petitioner : Mr.
Sanjeev K. Thakur, Advocate.
For the Respondent : Mr. G. R. Palsra, Advocate.
By medium of this petition, filed under Section 24 of the Code of
Civil Procedure, the petitioner has sought transfer of the petition registered
as H.M.A. No.14 of 2017 titled as Sita Ram vs. Kanta Devi, from the Court of
learned Civil Judge (Senior Division), Court No.1, Sarkaghat, District Mandi to
the Court of learned Civil Judge (Senior Division), Kullu, District Kullu, H.P.
2. The
transfer has been sought primarily on the ground of convenience/inconvenience
of the petitioner as Sarkaghat is approximately 127 KM away from the present residence
of the petitioner i.e. Bajaura. Not only this, the petitioner is not in a
position to bear the travelling expenses on each and every date of hearing of
the case at Sarkaghat. It is claimed that the petitioner has a daughter aged about 13
years old and, therefore, it is difficult for her to travel all the way to
attend the proceedings at Sarkaghat. Moreover, the petitioner is not having
sufficient financial means and assistance to bear the expenses for travelling
as she is unemployed.
3. The
respondent has not opposed the petition for transfer. I have heard the learned counsel for the parties and gone through
the records of the case.
4. It is
more than settled that the cases relating to transfer of matrimonial
proceedings, it is the convenience of the wife, which has to be looked at.
5. In Sumita Singh versus Kumar Sanjay and another
(2001) 10 SCC 41, it was
held by the Hon’ble Supreme Court that in a case where the wife seeks transfer of
the petition, then as against husband’s convenience, it is the wife’s
convenience which must be looked at.
6. In Soma Choudhury versus Gourab Choudhaury
(2004) 13 SCC 462, it was
held by the Hon’ble Supreme Court that once the wife alleges that she has no
source of income whatsoever and was entirely dependent upon his father, who was
a retired government servant, then it was the convenience of the wife which was
required to be looked into and not that of the husband, who had pleaded a
threat to his life. It was further observed that if the respondent therein had
any threat to his life, he could take police help by making an appropriate
application to this effect.
7. In Rajani Kishor Pardeshi
versus Kishor Babulal
Pardeshi (2005) 12 SCC 237, in a case seeking transfer of the case at the instance of the
wife, it was specifically held by the Hon’ble Supreme Court that convenience of
wife was the prime consideration.
8. Similarly,
while dealing with the application for transfer of proceedings in Kulwinder Kaur alias Kulwinder
Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC 659, the Hon’ble Supreme Court after analyzing the
provisions of Sections 24 and 25 of the Code of Civil Procedure laid down certain
broad parameters for transfer of cases and it was held:-
“23. Reading Sections 24 and 25 of the Code together and
keeping in view various judicial pronouncements, certain broad propositions as
to what may constitute a ground for transfer have been laid down by Courts.
They are balance of convenience or inconvenience to the plaintiff or the defendant
or witnesses; convenience or inconvenience of a particular place of trial
having regard to the nature of evidence on the points involved in the suit;
issues raised by the parties; reasonable apprehension in the mind of the
litigant that he might not get justice in the court in which the suit is
pending; important questions of law involved or a considerable section of
public interested in the litigation; “interest of justice” demanding for
transfer of suit, appeal or other proceeding, etc. Above are some of the
instances which are germane in considering the question of transfer of a suit,
appeal or other proceeding. They are, however, illustrative in nature and by no
means be treated as exhaustive. If on the above or other relevant
considerations, the Court feels that the plaintiff or the defendant is not likely
to have a “fair trial” in the Court from which he seeks to transfer a case, it
is not only the power, but the duty of the Court to make such order.”
9. In Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta
(2008) 9 SCC 353, the Hon’ble
Supreme Court was dealing with a case where the wife had sought transfer of
proceedings on the ground that she was having a minor child and it was
difficult for her to attend the Court at Palamu, Daltonganj, which was in the State
of Jharkhand and at a quite distance from Patna where she was now residing with
her child. Taking into consideration the convenience of the wife, the
proceedings were ordered to be transferred.
10. Similarly, in Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374, the wife had sought transfer of the case to Bombay
from Indore in Madhya Pradesh on the ground of inconvenience as there was none
in her family to escort her to Indore and on this ground the proceedings were
ordered to be transferred.
11. From the conspectus of the aforesaid judgments the broad consensus
that emerges is that in dispute of the present kind where the petitioner is
residing alongwith her minor daughter at a distance of 127 km away from Sarkaghat
where the case is pending, it is the convenience of the petitioner which is
required to be considered over and above the inconvenience of the husband.
12. In view of the aforesaid discussion and exposition of law laid
down by the Hon’ble Supreme Court in the aforesaid cited judgments, the
petition is allowed and the proceedings filed under Section 9 of the Hindu
Marriage Act by the respondent against the petitioner in case titled Sita Ram vs. Kanta Devi pending before the Court of learned Civil Judge (Senior
Division), Court No.1, Sarkaghat, District Mandi, H.P. registered as H.M.A.
No.14 of 2017, are ordered to be transferred to the Court of learned Civil
Judge (Senior Division), Kullu, District Kullu, H.P.
13. The parties are directed to appear before the Court of learned
Civil Judge (Senior Division), Kullu, District Kullu, H.P. on 02.07.2018.
14. The petition is disposed of in the aforesaid terms, leaving the
parties to bear their costs. Pending application, if any, also stands disposed
of. Interim order passed by this Court on 03.05.2018 is vacated May 31, 2018.
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