Daljit Kaur v. Sukhwinder Singh

CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Ms. Anju Arora, Advocate for the applicant. Mr. Divya Vishavjeet Singh, Advocate for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of petition, titled as Sukhwinder Singh Vs. Daljit Kaur filed under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act') by the respondent-husband from the Court of Civil Judge, Ludhiana to the Court of competent jurisdiction at Malout. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Sikh rites at Muktsar on 24.10.2004. Out of the wedlock two male children were born. Thrice the matter was compromised with the intervention of family members and Panchayat. The applicant was turned out of matrimonial home on 19.11.2009 after giving severe beatings. As all efforts for reconciliation thereafter remained futile, the applicant filed an application under Section 125 Cr.P.C. at Malout and also gave a complaint to SSP Muktsar for registration of case under Sections 406, 498-A, 506 IPC but no such case was registered as the respondent is rich and influential person running the Industry at Ludhiana. As a counter blast to the aforesaid application filed by the applicant, the respondent filed a petition under Section 9 of the Act at Ludhiana. The submission is that it is difficult for the applicant to attend the hearings of the petition under Section 9 of the Act filed by the respondent-husband at Ludhiana, being a poor lady, who is living with two school going children at the mercy of her parents with no source of income. No one is there in the family to accompany her to attend hearings of the T.A. No. 119 of 2010 2 case at Ludhiana. It is pertinent to mention here that the petition under Section 25 of the Guardian and Wards Act, for custody of minor children filed by the respondent was also transferred by this Hon'ble Court vide order dated 8.3.2010 passed in T.A. No. 97 of 2010 Daljit Kaur Vs. Sukhwinder Singh. The applicant is not even being paid any maintenance. It is the convenience of the wife which is to be seen. Considering the aforesaid facts, the petition under Section 9 of the Act filed by the husband at Ludhiana be transferred to the Court of competent Jurisdiction at Malout. On the other hand learned counsel for the respondent opposed the prayer made by the counsel for the applicant. Heard learned counsel for the parties and perused the record. 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 T.A. No. 119 of 2010 3 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 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 T.A. No. 119 of 2010 4 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. In the present case, the applicant-wife is residing at Malout. The application filed by her under Section 125 Cr.P.C. which is prior in time, is also pending at Malout. The petition under Section 9 of the Act was subsequently filed by the husband at Ludhiana. It would certainly be difficult and in-convenient for the wife living along with two children at the mercy of her parents, to attend hearing of the petition under Section 9 of the Act at Ludhiana. Earlier petition filed by the husband under Guardian and Ward Act at Ludhiana was also transferred by this Court from there on the request of the wife to Malout, vide order dated 8.3.2010 passed in T.A. No. 97 of 2010. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition under Section 9 of the Act filed by the respondent which is pending in the Court of Civil Judge, Ludhiana titled as Sukhwinder Singh Vs. Daljit Kaur, deserves to be transferred to the Civil Judge (Sr. Division), Malout. Ordered accordingly. Parties are directed to appear before Civil Judge (Sr. Division), Malout on 6.9.2010 for further proceedings. The Civil Judge (Sr. Division), Malout may either keep the same with himself or entrust the same to any other competent Court. The application stands disposed of accordingly.

2.8.2010 Reema (RAJESH BINDAL) JUDGE