Home Himachal Pradesh High Court Hindu Marriage Act 1955 Transfer of Matrimonial Proceedings Transfer of Matrimonial Proceedings : It is the Convenience of the Wife, which has to be looked at [Case Law]
Civil Procedure Code, 1908 - S. 24 & 25 - Hindu Marriage Act, 1954 - Section 9 - Cases relating to transfer of matrimonial proceedings, it is the convenience of the wife, which has to be looked at.
Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
CMPMO No. 140 of 2018
Date of decision: 31.05.2018
Kanta Devi v. Sita Ram
For the Petitioner : Mr. Sanjeev K. Thakur, Advocate.
For the Respondent : Mr. G. R. Palsra, Advocate.
By medium of this petition, filed under Section 24 of the Code of Civil Procedure, the petitioner has sought transfer of the petition registered as H.M.A. No.14 of 2017 titled as Sita Ram vs. Kanta Devi, from the Court of learned Civil Judge (Senior Division), Court No.1, Sarkaghat, District Mandi to the Court of learned Civil Judge (Senior Division), Kullu, District Kullu, H.P.
2. The transfer has been sought primarily on the ground of convenience/inconvenience of the petitioner as Sarkaghat is approximately 127 KM away from the present residence of the petitioner i.e. Bajaura. Not only this, the petitioner is not in a position to bear the travelling expenses on each and every date of hearing of the case at Sarkaghat. It is claimed that the petitioner has a daughter aged about 13 years old and, therefore, it is difficult for her to travel all the way to attend the proceedings at Sarkaghat. Moreover, the petitioner is not having sufficient financial means and assistance to bear the expenses for travelling as she is unemployed.
3. The respondent has not opposed the petition for transfer. I have heard the learned counsel for the parties and gone through the records of the case.
4. It is more than settled that the cases relating to transfer of matrimonial proceedings, it is the convenience of the wife, which has to be looked at.
5. In Sumita Singh versus Kumar Sanjay and another (2001) 10 SCC 41, it was held by the Hon’ble Supreme Court that in a case where the wife seeks transfer of the petition, then as against husband’s convenience, it is the wife’s convenience which must be looked at.
6. In Soma Choudhury versus Gourab Choudhaury (2004) 13 SCC 462, it was held by the Hon’ble Supreme Court that once the wife alleges that she has no source of income whatsoever and was entirely dependent upon his father, who was a retired government servant, then it was the convenience of the wife which was required to be looked into and not that of the husband, who had pleaded a threat to his life. It was further observed that if the respondent therein had any threat to his life, he could take police help by making an appropriate application to this effect.
7. In Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi (2005) 12 SCC 237, in a case seeking transfer of the case at the instance of the wife, it was specifically held by the Hon’ble Supreme Court that convenience of wife was the prime consideration.
8. Similarly, while dealing with the application for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC 659, the Hon’ble Supreme Court after analyzing the provisions of Sections 24 and 25 of the Code of Civil Procedure laid down certain broad parameters for transfer of cases and it was held:-
“23. 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 the plaintiff or the 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 proceeding. 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.”
9. In Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta (2008) 9 SCC 353, the Hon’ble Supreme Court was dealing with a case where the wife had sought transfer of proceedings on the ground that she was having a minor child and it was difficult for her to attend the Court at Palamu, Daltonganj, which was in the State of Jharkhand and at a quite distance from Patna where she was now residing with her child. Taking into consideration the convenience of the wife, the proceedings were ordered to be transferred.
10. Similarly, in Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374, the wife had sought transfer of the case to Bombay from Indore in Madhya Pradesh on the ground of inconvenience as there was none in her family to escort her to Indore and on this ground the proceedings were ordered to be transferred.
11. From the conspectus of the aforesaid judgments the broad consensus that emerges is that in dispute of the present kind where the petitioner is residing alongwith her minor daughter at a distance of 127 km away from Sarkaghat where the case is pending, it is the convenience of the petitioner which is required to be considered over and above the inconvenience of the husband.
12. In view of the aforesaid discussion and exposition of law laid down by the Hon’ble Supreme Court in the aforesaid cited judgments, the petition is allowed and the proceedings filed under Section 9 of the Hindu Marriage Act by the respondent against the petitioner in case titled Sita Ram vs. Kanta Devi pending before the Court of learned Civil Judge (Senior Division), Court No.1, Sarkaghat, District Mandi, H.P. registered as H.M.A. No.14 of 2017, are ordered to be transferred to the Court of learned Civil Judge (Senior Division), Kullu, District Kullu, H.P.
13. The parties are directed to appear before the Court of learned Civil Judge (Senior Division), Kullu, District Kullu, H.P. on 02.07.2018.
14. The petition is disposed of in the aforesaid terms, leaving the parties to bear their costs. Pending application, if any, also stands disposed of. Interim order passed by this Court on 03.05.2018 is vacated May 31, 2018.