Rekha v. Bansi

Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Gaurav Sethi, Advocate, for the applicant. Mr. R. S. Chauhan, Advocate, for the respondent. Rajesh Bindal J. Prayer in the present application is for transfer of divorce petition titled as “Bansi vs Rekha” filed by the respondent/husband against the applicant- wife under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') from the Court of learned District Judge, Family Court, Hisar to the court of competent jurisdiction at Ambala. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites on

15.10.2009 at Radha Krishna Mandir, Ajit Nagar, Ambala Cantt. It is the second marriage of both the parties. After the marriage, the respondent and his parents never allowed to her to live in the matrimonial home. She was turned out of the matrimonial home. She along with her minor daughter is now living with her parents at Ambala. She is living at the mercy of her parents. She came to know about the divorce petition filed by the husband in the court of learned District Judge, Family Court, Hisar, only when she received the notice. The same has been filed by the husband only to harass her and her family members. She has no source of income. It was submitted that it is very difficult for the applicant to attend court proceedings by travelling 200 kilometers from Ambala to Hisar along with her minor daughter. There is no one in the family to accompany her to attend the court proceedings at Hisar. The submission is that it is difficult for the applicant to attend the hearings of the petition filed by the respondent-husband at Hisar, being a poor lady, who is living along with her minor daughter at the mercy of her parents with no source of income. It is the convenience of the wife which is to be seen. Considering the aforesaid facts, the petition filed by the husband at Hisar be transferred to the Court of competent Jurisdiction at Ambala. TA No. 187 of 2010 (2) On the other hand learned counsel for the respondent opposed the prayer made by the learned counsel for the applicant. It was submitted that as the petition filed by the respondent is of civil nature, she need not visit the court regularly. She can also got the facility of legal aid in case she cannot engage an advocate. Heard learned counsel for the parties. 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 Court to make such order." TA No. 187 of 2010 (3) 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 vs 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 vs 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 vs Gopal, 2003 (4) RCR (Civil) 26, having regard to the observations of the Supreme Court in Sumita Singh vs Kumar Sanjay and another, A.I.R. 2002 SC 396 and Neelam Kanwar vs 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. In the present case, the applicant-wife is residing at Ambala along with her minor daughter at her parents house. The petition filed by the husband for divorce under Section 13 of the Act is pending at Hisar. The wife has alleged that the petition filed at Hisar has been filed only to harass her. It would certainly be difficult and in-convenient for the wife, who is living along with her minor daughter at the mercy of her parents at Ambala, to attend hearing of the divorce petition at Hisar which is about 200 kilometers from Ambala. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my TA No. 187 of 2010 (4) opinion, the petition filed by the respondent which is pending in the Court of District Judge, Family Court, Hisar titled as Bansi vs Rekha, deserves to be transferred to the Court of District Judge, Ambala. Ordered accordingly. Parties are directed to appear before District Judge, Ambala, on 18.9.2010 for further proceedings. The District Judge, Chandigarh may either keep it with him or entrust the same to any other competent Court. The application stands disposed of accordingly.

24.8.2010 vs. (Rajesh Bindal) Judge