Priya Kumari v. Balwinder Kumar

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision: 29.09.2022 Priya Kumari ....Petitioner

Versus

Balwinder Kumar ....Respondent CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present:

Mr. Jasdeep Singh, Advocate for the petitioner.

Mr. J.S. Mahal, Advocate and Mr. Ravinder, Advocate for the respondent.

ARVIND SINGH SANGWAN J. (Oral) Prayer in this petition is for transfer of the petition filed under Section 9 of the Hindu Marriage Act, pending in the Family Court, Gurdaspur to the competent Court of jurisdiction at Bathinda. Vide order dated 28.10.2021, the following order was passed:- "The petitioner is the wife of the respondent. She has filed the present petition under Section 24 Code of Civil Procedure seeking transfer of the petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, pending in the Court of Principal Judge Family Court, District Gurdaspur to the Court of Competent Jurisdiction at Bathinda, Punjab.

The marriage of the petitioner was solemnized with the respondent on 30.06.2020 at Bathinda. It is the case of the petitioner that ever since the marriage of the petitioner she has been harassed and tortured by the respondent and his family members on account of demand of dowry. Soon after her marriage she was thrown out from the matrimonial home. Since then she alongwith is residing with her parents at Bathinda.

In order to harass the petitioner, the respondent has

filed a petition under Section 9 of the Hindu Marriage Act, which is pending in the Court of Principal Judge, Family Court, Gurdaspur. It is difficult for the petitioner to travel from Bathinda to Gurdaspur to attend the Court proceedings as the distance is more than 257 kms. The petitioner has no independent source of income, she is fully dependent on her parents.

Notice of motion for 25.01.2022."

Counsel for the petitioner has argued that on account of a matrimonial discord, the respondent/husband has filed the petition under Section 9 of the Hindu Marriage Act, before the Principal Judge, Family Court, Gurdaspur.

Counsel for the petitioner has also argued that on account of a petition filed by the respondent/husband, the petitioner is facing great difficulty in prosecuting the said case as there is a distance of about 255 Kms from Bathinda to Gurdaspur.

Counsel for the petitioner has relied upon the judgments "Sumita Singh vs Kumar Sanjay", 2002 SC 396 and "Rajani Kishor Pardeshi vs 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."

Counsel for the petitioner has also relied upon the judgment "N.C.V. Aishwarya vs A.S. Saravana Karthik Sha," 2022 Live Law (SC) 627, wherein the Hon'ble Supreme Court has observed

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."

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. Counsel for the respondent has, however, not disputed the factual position but opposed the submissions made by counsel for the petitioner.

After hearing the counsel for the parties, considering the

fact that the petitioner/wife will have to bear the litigation expenses and transportation expenses and in view of 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 deem it appropriate to allow the present petition, subject to the following conditions:-

1. The petition filed under Section 9 of the Hindu Marriage Act, pending before the Family Court, Gurdaspur will be transferred to the competent Court of jurisdiction at Bathinda.

2. The District Judge, Bathinda, will assign the said petition to the competent Court of jurisdiction.

3. The Family Court, Gurdaspur is directed to transfer all the record pertaining to the aforesaid case to District Judge, Bathinda.

4. The parties are directed to appear before the trial Court, Bathinda, within a period of 01 month from today.

5. The Family Court, Bathinda 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.

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

Disposed of.

(ARVIND SINGH SANGWAN) JUDGE 29.09.2022 yakub Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No