Pratibha v. Avinash Gupta

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Transfer Application No. 1041 of 2022 Date of decision: 14.11.2022 Pratibha ..........Petitioner vs Avinash Gupta ...........Respondent CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Pankaj Bains, Advocate for the petitioner.

None 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 "Avinash Gupta vs Pratibha" pending in the Court of Principal Judge, Family Court, Patiala to a Court of competent jurisdiction at Mohali.

Despite service, nobody has put in appearance on behalf of respondent today. Even on the last date of hearing no one had put in appearance on behalf of respondent.

2. Learned counsel for the petitioner has contended :- i) that the parties were married on 04.09.2016 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 26.09.2016 and living alone in Dubai.

iv) that the petitioner is working in Dubai and to follow the cases arising out of matrimonial disputes, she is totally dependent upon her parents and the respondent-husband is not paying anything to her towards maintenance rather many times financially, physically and mentally exploited her.

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, Patiala. The proceedings arising out of petitions (1) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and (2) 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 parental home of the petitionerwife 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, Patiala, is about 80 kilometers of one side. vi) that because the petitioner is working on contract basis in Dubai, because of which, she is fully dependent upon her parents to pursue the cases arising out of matrimonial disputes. The father of the petitioner is senior citizen and suffering from acute hypertension and other problems arising out of old age. The mother of the petitioner is presently working as S.S. Mistress (teacher), who is posted at Senior Secondary School, Mullapur, District Mohali. The parents of the petitioner are living in New Chandigarh, Mullanpur on rented accommodation. Due to old age and suffering from several diseases, father of

the petitioner is not in a position to attend the proceedings on each date in the District Court at Patiala. 3.

It is inter alia on these grounds that petitioner prays for transfer of the case, as detailed in para 1 above. 4.

I have heard learned counsel for the petitioner. 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 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, bearing No. DMC/95/2019, titled as Avinash Gupta vs.

Pratibha, pending in the Court of Principal Judge, Family Court, Patiala is transferred to a Court of competent jurisdiction at Mohali.

b) The ld. District Judge, Patiala 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 14, 2022 ( NIDHI GUPTA ) Vijay Asija JUDGE Whether speaking/reasoned YES/NO Whether Reportable YES/NO