Sumita Verma v. Rajiv Kumar Verma

CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. H.N. Mehtani, Advocate for the applicant. Mr. Ashwani Talwar, Advocate for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of divorce petition, titled as Rajiv Kumar Verma Vs. Sumita Verma filed under Section 13 of the Hindu Marriage Act, 1955 ( for short 'the Act') by the respondent-husband from the Court of District Judge, Panchkula to the Court of competent jurisdiction at Yamuna Nagar. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites at Yamuna Nagar on 14.2.1992. Out of the wedlock two male children were born. The applicant was turned out of matrimonial home along with children in April 2006 after giving severe beatings. Earlier, the applicant lodged a DDR against the respondent and his family members but they begged pardon in the police station. As all efforts for reconciliation thereafter remained futile, the applicant filed a petition under Section 125 of the Code of Criminal Procedure for maintenance before Additional Chief Judicial Magistrate, Yamuna Nagar on

28.8.2006 which is pending. As a counter blast to the aforesaid petition filed by the applicant, the respondent filed a divorce petition at Panchkula. The submission is that it is difficult for the applicant to attend the hearings of the divorce petition filed by the respondent-husband at Panchkula, being a poor lady who is living at the mercy of her mother, with no source of income. The applicant is not even being paid any maintenance. The respondent-husband is T.A. No. 108 of 2010 -2- working as a Senior Town Planner at Chandigarh. The distance between Yamuna Nagar and Panchkula is about 100 kilometers. Father of the applicant had died since long back and she has an old mother, who cannot accompany her to Panchkula for attending the Court proceedings. It is the convenience of the wife which is to be seen. Considering the aforesaid facts, the divorce petition filed by the husband at Panchkula be transferred to the Court of competent Jurisdiction at Yamunanagar. Heard learned counsel for the parties and perused the paper book. 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 T.A. No. 108 of 2010 -3- 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." 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 T.A. No. 108 of 2010 -4- 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. In the present case, the applicant-wife is residing at Yamunanagar. An application filed by her under Section 125 Cr.P.C, which is prior in time is also pending at Yamunanagar in which the proceedings are pending. The divorce petition was subsequently filed by the husband at Panchkula. The next date of hearing in the divorce petition at Panchkula is stated to be 2.8.2010. It would certainly be difficult and in-convenient for the wife living at the mercy of her mother, to attend hearing of the divorce petition at Panchkula. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the divorce petition filed by the respondent which is pending in the Court of District Judge, Panchkula titled as Rajiv Kumar Verma Vs. Sumita Verma, deserves to be transferred to the District Judge, Yamunanagar. Ordered accordingly. Parties are directed to appear before District Judge, Yamunanager on August 7, 2010 for further proceedings. The District Judge may either keep the same with him or entrust the same to any other Additional District Judge. The application stands disposed of accordingly.

16.7.2010. Reema (RAJESH BINDAL) JUDGE (Refer to Reporter)