Kiran Jassal v. Ravindra Kumar

Mr. Kasturi Lal, Advocate for the applicant. Mr. Sandeep Kotla, Advocate for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of petition, titled as Ravindra Kumar Vs. Kiran Jassal filed under Section 12(1) (b) and 13 of the Hindu Marriage Act, 1955 (for short 'the Act') by the respondent-husband from the Court of Addl. District Judge, Kurukshetra to the Court of competent jurisdiction at Panchkula. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Sikh rites at Zirakpur on 9.3.2008. The applicant was deserted from matrimonial home on

30.9.2009 while she was residing with the respondent at place of his services at Delhi. Thereafter, the respondent got a false complaint registered at Police Station Pipli Thanasar, where statement of father of applicant, mother and brother were recorded and feeling satisfied no action was taken. Again respondent filed a petition under Section 12 (1) (b) and 13 of the Act on 4.1.2010 at Kurukshetra which is still pending. On the complaint of applicant an FIR No. 7 under section 498-A, 403, 405, 406, 323, 325, 506 IPC has been got registered at Police Station Sector 19, Panchkula in which challan has also been presented. The submission is that it is difficult for the applicant to attend the hearings of the petition under Section 12(1) (b) and 13 of the Act filed by the respondent-husband at Kurukshetra, being a poor lady, who is living at the mercy of her old parents with no source of income. Besides her old parents, the T.A. No. 162 of 2010 2 applicant is having one younger brother and one younger sister who are studying. Father of the applicant is serving in Oriental Insurance Company and is presently posted at Khanna. No one is there in the family to accompany her to attend hearings of the case at Kurukshetra. The respondent is employed an Executive in a private Company and is earning about ` 20,000/- per month. 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 12(1) (b) and 13 of the Act filed by the husband at Kurukshetra be transferred to the Court of competent Jurisdiction at Panchkula. On the other hand learned counsel for the respondent submitted that it is admitted that the respondent is residing at Delhi and his parents are living at Kurukshetra. It is further submitted that the applicant is a well qualified lady and doing home tuition and her sister is a school teacher and brother is also earning from tuition. It was further submitted that the respondent was terminated from the company due to registration of criminal case for the last three months. The applicant is doing M.Phil at Kurukshetra. For five days in a week she goes to Kurukshetra. The applicant had lived for 1 ½ year at Kurukshetra after marriage. Respondent is ready to pay the expenses for the visit of applicant-wife to Kurukshetra. To support his arguments he has relied upon Y.A. Ajit v. Sofana Ajit AIR 2007 Supreme Court 3151 and Anindita Das vs. Srijit Das (2006) 9 Supreme Court Cases 197. 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 T.A. No. 162 of 2010 3 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 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 T.A. No. 162 of 2010 4 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. In the present case, the applicant-wife is residing at Panchkula. Criminal case got registered by the applicant is also pending at Panchkula. The petition under Section 12(1) (b) and 13 of the Act was filed by the husband at Kurukshetra. It would certainly be difficult and in-convenient for the wife living at the mercy of her old parents, to attend hearing of the petition under Section 12 (1) (b) and 13 of the Act at Kurukshetra. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition under Section 12(1) (b) and 13 of the Act filed by the respondent which is pending in the Court of Addl. District Judge, Kurukshetra titled as Ravindra Kumar vs. Kiran Jassal, deserves to be transferred to the District Judge, Panchkula. Ordered accordingly. Parties are directed to appear before District Judge, Panchkula on August 21, 2010 for further proceedings. The District Judge may either keep the same with him or entrust the same to any other T.A. No. 162 of 2010 5 competent Court. The application stands disposed of accordingly.

28.7.2010. Reema (RAJESH BINDAL) JUDGE