Seema v. Ramanjit Singh

Ms. Narender Kaur, Advocate for the applicant. Mother of respondent in person. RAJESH BINDAL J Prayer in the present application is for transfer of petition, titled as Ramanjit Singh Vs. Seema Munjal filed under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act') for restitution of conjugal rights, by the respondent- husband from the Court of Additional Civil Judge (Sr. Division), Patiala to the Court of competent jurisdiction at Ludhiana and also for transfer of Civil Suit for permanent injunction titled as Ramanjit Singh Vs. Seema Munjal filed by the respondent-husband from the Court of Civil Judge (Jr. Division), Patiala to the Court of competent jurisdiction at Ludhiana. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Sikh rites at Ludhiana on 18.7.1999. A male child was born out of the wedlock. The applicant was turned out of matrimonial home in the month of April 2006 after giving severe beatings due to which she was to be admitted to Deep Hospital, Patiala. The respondent is a drug addict. As all efforts for reconciliation thereafter remained futile, the applicant moved an application before SSP Ludhiana where a compromise was effected between the parties. The applicant also filed an application under The Protection of Women from Domestic Violence Act, 2005 (for short 'the DV Act') against the respondent at Ludhiana and a petition under Section 13 of the Hindu Marriage Act, at Ludhiana. As a counter blast to the aforesaid applications and divorce petition filed by the applicant, the T.A. No. 180 of 2010 2 respondent filed a petition under Section 9 of the Act and Civil Suit at Patiala. The submission is that it is difficult for the applicant to attend the hearings of the divorce petition filed by the respondent-husband at Patiala, being a poor lady, who is living with minor child at the mercy of her brother with no source of income. 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 and the suit for permanent injunction filed by the husband at Patiala be transferred to the Court of competent Jurisdiction at Ludhiana. Mother of the respondent has appeared alongwith the respondent in person in Court. They have opposed the prayer made by the learned counsel for the applicant. Heard learned counsel for the applicant, mother of the respondent 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 T.A. No. 180 of 2010 3 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 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 T.A. No. 180 of 2010 4 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 Ludhiana. Two cases filed by the applicant are already pending at Ludhiana. The petition under Section 9 of the Act and Civil Suit were subsequently filed by the husband at Patiala. It would certainly be difficult and in-convenient for the wife living with her brother, to attend hearing of the petition under Section 9 of the Act and Civil Suit at Patiala. 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 Addl. Civil Judge (Sr. Division), Patiala deserves to be transferred to the Family Court, Ludhiana and the suit for permanent injunction filed by the respondent which is pending in the Court of Civil Judge (Junior Division), Patiala also deserves to be transferred to Civil Judge (Sr. Division), Ludhiana. Ordered accordingly. Parties are directed to appear before Family Court, Ludhiana in petition under Section 9 of the Act and before Civil Judge (Sr. Division), Ludhiana in suit for permanent injunction on 17.9.2010. The Civil Judge (Sr. Division), Ludhiana, may either keep the suit with him or entrust the same to any other competent Court. The application stands disposed of accordingly.

2.8.2010 Reema (RAJESH BINDAL) JUDGE