Anu Rani v. Viney Kumar

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Transfer Application No. 392 of 2021 (O & M) Date of decision: 22.11.2022 Anu Rani ..........Petitioner vs Viney Kumar ...........Respondent CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. G.S. Sawhney, Advocate for the petitioner.

Mr. Nazar Singh, Advocate for Mr. Jagbir Singh, Advocate For the respondent.

NIDHI GUPTA, J.(Oral) 1.

Prayer in this petition filed by petitioner-wife is for transfer of the petition filed by respondent-husband under Section 9 of the Hindu Marriage Act,1955 titled "Viney Kumar vs. Anu Rani" pending in the Court of Principal Judge, Family Court, Yamunanagar at Jagadhri to a Court of competent jurisdiction at Mohali.

2. Learned counsel for the petitioner has contended :- i) that the parties were married on 10.12.2017 according to Hindu rites and rituals.

ii) that no child was born out of this wedlock.

iii) that the petitioner-wife is living separately from the respondent-husband since December 2018.

iv) that the petitioner is doing private job in Mohali and the respondent-husband is not paying anything to her towards maintenance.

v) The respondent-husband has filed the petition under Section 9 of the Hindu Marriage Act, which is pending before the Principal Judge, Family Court, Jagadhri. The proceedings arising out of petition under Section 125 Cr.P.C., filed by the petitioner-wife, are pending in the Courts having competent jurisdiction at Mohali. v) that the distance between place of residence of the petitioner-wife i.e. Mohali and the place of proceedings under Section 9 of the Hindu Marriage Act, 1955 filed by the respondent-husband, pending before the Principal Judge, Family Court, Jagadhri, is about 120 kilometers of one side.

vi) that there is no able bodied person in the family of the petitioner, who can accompany her to the Court of proceedings at Jagadhri.

3.

It is inter alia on these grounds that petitioner prays for transfer of the case, as detailed in para 1 above. Perusal of the order dated 10.10.2022 passed by this Court shows that on request of learned counsel for the parties, the matter was sent to the Mediation & Conciliation Center of this Court to explore the possibility of amicable settlement between the parties. The report dated 17.11.2022 received from the Mediation & Conciliation Center reveals that despite best efforts the amicable settlement could not take place in between the parties. Learned counsel for the respondent is unable to dispute the aforesaid facts.

4.

I have heard learned counsel for the parties. The legal position in such like cases as the present one, is well established. In this regard, judgment of the Hon'ble Supreme

Court rendered in N.C.V. Aishwarya vs A.S. Saravana Karthik Sha," 2022 Live Law (SC) 627, is most relevant wherein the Hon'ble Supreme Court has held as under:- "9. The cardinal principle for exercise of power under section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer.

10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions."

5.

Further reliance can be placed upon the judgments in "Sumita Singh vs Kumar Sanjay", 2002 SC 396 and "Rajani Kishor Pardeshivs Kishor Babulal Pardeshi", 2005(12) SCC 237, wherein the Hon'ble Supreme Court has observed that "while deciding the transfer application, the Courts are required to give more weightage and consideration to the convenience of the female litigants and transfer of legal proceedings from one Court to another should ordinarily be allowed, taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships."

6.

Even this Court in number of cases has followed the aforesaid principle of law. Accordingly, it is well settled that while

considering the transfer of a matrimonial dispute/case, at the instance of the wife, the Court is to consider the family condition of the wife, the custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important the convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place to and fro from her place of residence as well as bearing of the litigation charges and travelling expenses.

7.

In view of the facts mentioned above and the judgments i.e. Sumita Singh's case (supra), Rajani Kishor Pardeshi's case (supra) and N.C.V. Aishwarya's case (supra) passed by the Hon'ble Supreme Court, this Court deems it appropriate to allow the present petition, subject to the following conditions:- a) The petition filed by respondent husband under Section 9 of Hindu Marriage Act,1955, titled as 'Viney Kumar vs. Anu Rani', pending in the Court of Principal Judge, Family Court, Jagadhri is transferred to a Court of competent jurisdiction at Mohali.

b) The ld. District Judge, Yamunanagar at Jagadhri is directed to transfer complete record pertaining to the aforesaid case to District Judge, Mohali. c) The parties are directed to appear before the District & Sessions Judge, Mohali.

d) The District Judge, Mohali will assign the said petition to the Court of competent jurisdiction. 8.

The concerned Court at Mohali will make all endeavour to refer the case before the Mediation and Conciliation Centre for

exploring the possibility of some amicable settlement between the parties.

9.

The Court concerned, where the litigation pending between the parties, will accommodate them with one date in one calendar month.

11.

I am supported by the decisions rendered by a Co-ordinate Bench of this Court in TA No. 1315/2022, Rohini Arora v Nitin Talwar; TA No. 1322 of 2022, Jaswinder Kaur v Gurvinderjeet Singh; and TA No. 1323 of 2022, Usha Rani v Karmajit Singh. Disposed of.

Pending application(s), if any, stands disposed of. November 22, 2022 ( NIDHI GUPTA ) Vijay Asija JUDGE Whether speaking/reasoned YES/NO Whether Reportable YES/NO