Nirmala v. Swaran Masih

CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. L.S. Sidhu, Advocate for the applicant. None for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of petition, titled as Swaran Masih Vs. Smt. Nirmala filed under Section 10 of the Indian Divorce Act, (for short 'the Act') by the respondent-husband from the Court of District Judge, Gurdaspur to the Court of competent jurisdiction at Mansa. Service of respondent is complete. However, at the time of hearing, no one had appeared for him. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Christian rites at Gurdaspur on 24.4.1994. Out of the wedlock two children were born. The applicant is working as Staff Nurse at Civil Hospital, Mansa. Both the children are residing with the applicant and are studying at Mansa. The respondent is B.A.M.S. and is doing private practice as Medical Practitioner at Gurdaspur. The distance between Mansa to Gurdaspur is about 200 kms. It was further submitted that earlier also this Court vide order dated 22.1.2007 passed in C.M. No. 20745-CII of 2006 was pleased to transfer the petition under Section 32 of Indian Divorce Act, pending in the Court of District Judge, Gurdaspur to the Court of District Judge, Mansa. The submission is that it is difficult for the applicant to attend the hearings of the petition under Section 10 of the Act filed by the respondent-husband at Gurdaspur. The applicant is not even being paid any maintenance. It is the convenience of the wife which is to be seen. T.A. No. 428 of 2009 2 Considering the aforesaid facts, the petition under Section 10 of the Act filed by the husband at Gurdaspur be transferred to the Court of competent Jurisdiction at Mansa. No one had appeared for the respondent at the time of hearing to controvert the argument raised by the learned counsel for the applicant. The issue regarding transfer of case from one Court to another has been discussed by Courts in numerous judgments. In Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others, 2008 (3) SCC 659, the Hon'ble Supreme Court laid down certain parameters to be considered for the purpose, while opining that the same cannot be treated as exhaustive but illustrative in nature. The relevant Para-14 thereof is extracted hereunder: “Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. 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 plaintiff or 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 proceedings. 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 T.A. No. 428 of 2009 3 Court to make such order." The issue regarding transfer of matrimonial proceedings almost in similar circumstances came up for consideration before this Court as well in a number of cases earlier. It has been the consistent view that primarily the convenience of the wife is to be given weightage for ordering transfer of proceedings at or near the place where she is residing. In Veena alias Arti v. Pawan Kumar, 1998(1) RCR (Civil) 558 (P&H) : 1998 (1) M.L.J. 316, the proceedings under Section 9 of the Act filed by the husband at Sultanpur Lodhi were ordered to be transferred to Amritsar by this Court. In Smt. Sonia v. Rajnish Kumar Arora, 1997 (2) RCR (Civil) 361 (P&H) : 1998 (1) M.L.J. 37, this Court ordered transfer of petition under Section 9 of the Act from Ludhiana to Amritsar. On yet another occasion in Suman v. Gopal, 2003 (4) RCR (Civil) 26, having regard to the observations of the Supreme Court in Sumita Singh v. Kumar Sanjay and another, A.I.R. 2002 SC 396 and Neelam Kanwar v. Devinder Singh Kanwar, 2001 (1) M.L.J. 509 (S.C.), this Court ordered the transfer of matrimonial proceedings from Gurgaon to Faridabad. The relevant observations from Neelam Kanwar's case (supra) are extracted as under:- “We are midful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reasons not to do so. No special reason is shown.” In Milli vs. Mukesh Kumar, 2005 (4) RCR (Civil) 422, a petition filed under Section 9 of the Act, for restitution of conjugal rights, was ordered to be transferred from Jagadhari to Amritsar on an application filed by the wife. As is evident from the cases referred to above, the principle of law with regard to transfer of cases especially regarding matrimonial disputes is quite settled, where consistent opinion is that it is always the convenience of wife which has to be given due weightage for ordering the transfer of proceedings at or near the place where the wife is residing. T.A. No. 428 of 2009 4 In the present case, the applicant-wife is residing at Mansa. The petition under Section 10 of the Act was filed by the husband at Gurdaspur. It would certainly be difficult and in-convenient for the wife living with two school going children and working as Staff Nurse, to attend hearing of the petition under Section 10 of the Act at Gurdaspur. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition under Section 10 of the Act filed by the respondent which is pending in the Court of District Judge, Gurdaspur titled as Swaran Masih Vs. Smt. Nirmala, deserves to be transferred to the District Judge, Mansa. Ordered accordingly. Parties are directed to appear before District Judge, Mansa on 28.8.2010 for further proceedings. The District Judge may either keep the same with him or entrust the same to any other competent Court. As the respondent remained unrepresented before this Court, the factum regarding the transfer of the petition from Gurdaspur to Mansa shall be brought to the notice of the respondent or his counsel by the Court concerned at Gurdaspur on the next date of hearing. The application stands disposed of accordingly.

2.8.2010 Reema (RAJESH BINDAL) JUDGE