Jasvir Kaur v. Jaswinder Singh

Mr. BPS Virk, Advocate for the applicant. Mr. S.C. Chhabra, Advocate for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of divorce petition, titled as Jaswinder Singh Vs. Jasvir Kaur filed under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') by the respondent-husband from the Court of District Judge, Mansa 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 Sikh rites at Ambala Cantt on 24.1.1999. Out of the wedlock a female child was born. After the birth of female child, the applicant and her child were never brought back to matrimonial home. As all efforts for reconciliation thereafter remained futile, the applicant filed an application before AWWA a Wing of the Military for grant of maintenance to the applicant and her child, where the respondent refused to take back the applicant and minor child. As a counter blast to the aforesaid application filed by the applicant, the respondent filed a divorce petition at Mansa. The respondent is serving in military and presently he is posted at Aurangabad, Maharashtra. The applicant's family consists of aged parents and three brothers. Mother of the applicant is suffering from heart ailments and two brothers are in military; one is posted at Pune and other at Delhi. Third brother of the applicant is residing in Australia. The submission is that it is difficult for the applicant to attend the hearings of the divorce petition filed by the respondent- husband at Mansa, being a poor lady, who is living with minor child 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 case at Mansa. Distance between Mansa to Ambala is 150 kilometers. It is further submitted that no other proceeding is pending at any other place. 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 divorce petition filed by the husband at Mansa be transferred to the Court of competent Jurisdiction at Ambala. T.A. No. 81 of 2010 2 On the other hand learned counsel for the respondent submitted that the petition under Section 9 of the Act filed by the husband has been allowed ex-prate and against which the applicant neither filed any appeal nor joined the company of the husband. His father is 70 years old. As in his absence he is to attend the hearing of the case, it will be difficult for him to travel to Ambala. In response to the submissions by the learned counsel for the respondent-husband regarding decree of restitution of conjugal rights is concerned, it was submitted that the same is ex-parte, in which the wife was never served. The conduct and scheme of the husband is evident from the fact that though the decree of restitution of conjugal rights is dated 3.9.2009 and the divorce petition was filed by the husband thereafter on 13.11.2009 but still there is no mention of this fact. As the wife was not aware of the passing of decree of restitution of conjugal rights, she could not take appropriate steps in the matter. Heard learned counsel for the parties and perused the relevant referred 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 other proceeding, etc. Above are some of the instances T.A. No. 81 of 2010 3 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 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. The divorce petition was filed by the husband at Mansa. It would certainly be difficult T.A. No. 81 of 2010 4 and in-convenient for the wife living along with minor child at the mercy of her old parents, to attend hearing of the divorce petition at Mansa. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the divorce petition filed by the respondent which is pending in the Court of District Judge, Mansa titled as Jaswinder Singh Vs. Jasvir Kaur, deserves to be transferred to the District Judge, Ambala Ordered accordingly. Parties are directed to appear before District Judge, Ambala on August 21, 2010 for further proceedings. The District Judge may either keep the same with him or entrust the same to any other competent Court.

29.7.2010. Reema The application stands disposed of accordingly. (RAJESH BINDAL) JUDGE