Neelam v. Deepak Sharma

CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Dinesh Nagar, Advocate for the applicant. Mr. G.B.S. Dhillon, Advocate for the respondent. RAJESH BINDAL J Reply to the application has been filed by the respondent. Prayer in the present application is for transfer of petition, titled as Deepak Sharma Vs. Neelam 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 Civil Judge (Jr. Division), Ludhiana to the Court of competent jurisdiction at Dasuya, District Hoshiarpur. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites at Tanda District Hoshiarpur on 1.2.2004. No child was born out of the wedlock. The applicant was turned out of matrimonial home in the year 2006. The respondent filed a petition under Section 9 of the Act at Ludhiana. The applicant is having only one brother who is also married and the father is serving at Hoshiarpur as SHO. The applicant filed an application under Section 125 Cr.P.C. at Dasuya District Hoshiarpur. 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 at the mercy of her parents with no source of income. The applicant is not even being paid any maintenance. Respondent is carrying on business of sale of cassettes. 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 T.A. No. 213 of 2010 2 transferred to the Court of competent Jurisdiction at Dasuya District Hoshiarpur. On the other hand learned counsel for the respondent opposed the prayer made by learned counsel for the applicant. It was submitted that in case this Court still finds that the petition deserves to be transferred from Ludhiana, the same may be transferred to any other place than Dasuya as father of applicant is SHO at Hoshiarpur and the respondent apprehends threat at the hands of father of applicant. 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 T.A. No. 213 of 2010 3 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 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 T.A. No. 213 of 2010 4 or near the place where the wife is residing. In the present case, the applicant-wife is residing at Hoshiarpur. An application under Section 125 Cr.P.C. is pending at Dausya, District Hoshiarpur. The petition under Section 9 of the Act was filed by the husband at Ludhiana. It would certainly be difficult and in-convenient for the wife living at the mercy of her parents, to attend hearing of the petition under Section 9 of the Act at Ludhiana. Considering the fact that it is the convenience of the wife which is the paramount consideration but even the contention raised by the respondent about threat perception to him is also required to be considered. Without recording a definite finding thereon, in my opinion, the petition under Section 9 of the Act filed by the respondent which is pending in the Court of Civil Judge (Jr. Division), Ludhiana titled as Deepak Sharma Vs. Neelam, deserves to be transferred to the Civil Judge (Sr. Division), Jallandhar. Ordered accordingly. Parties are directed to appear before Civil Judge (Sr. Division), Jallandhar on 1.10.2010 for further proceedings. The Civil Judge (Sr. Division), Jalandhar may either keep it with him or entrust the same to any other competent Court. The application stands disposed of accordingly.

8.9.2010. Reema (RAJESH BINDAL) JUDGE