Aarti Devi v. Jaswinder Kumar Kanda @ Jaswinder

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH TA-583-2020 (O&M) Date of decision: 16.08.2022 Aarti Devi ....Petitioner Vs.

Jaswinder Kumar Kanda @ Jaswinder ....Respondent CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present:

Mr. Bhavesh Aggarwal, Advocate for the petitioner.

Mr. N.S. Mahal, Advocate for the respondent.

******* ARVIND SINGH SANGWAN, J. (Oral) Prayer in this petition is for transfer of the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act, pending before the Family Court, Jalandhar to the competent Court of jurisdiction at Ludhiana.

While issuing notice of motion, following order was passed on 11.12.2020: - "Learned counsel for the petitioner contends that marriage of the petitioner was solemnized with respondent on 01.05.2014. It was second marriage of both the parties. Out of this

-2wedlock, one male child was born, who is now aged about five years. A complaint under Section 12 of the D.V. Act is pending in a Court at Ludhiana, which has been filed by the petitioner. The petitioner is seeking transfer of the petition under Section 13 of the Hindu Marriage Act, 1955 from Jalandhar to Ludhiana, as she has to look after her child and it would cause a great difficulty for her to travel from Ludhiana to Jalandhar for the said purpose. Learned counsel further informs that earlier, the mediation proceedings had failed. For the benefit of minor child, one attempt can be made by referring the matter for mediation before this Court." Learned counsel 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 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."

Learned counsel has further relied upon N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha, 2022 Live Law (SC) 627, wherein the Hon'ble Supreme Court held as under: -

-3- "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.

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." Learned counsel for the respondent has, however, opposed the prayer for transfer of petition filed by the respondent. 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 family condition of the wife, custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important, 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

-4fro from her place of residence as well as bearing of the litigation charges and travelling expenses.

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 in 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 13 of the Hindu Marriage Act, pending before the Family Court, Jalandhar will be transferred to the competent Court of jurisdiction at Ludhiana.

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

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

4. The parties are directed to appear before the Family Court, Ludhiana within a period of 01 month from today. Present petition is disposed of accordingly.

[ ARVIND SINGH SANGWAN ] JUDGE 16.08.2022 vishnu Whether speaking/reasoned :

Yes/No Whether reportable:

Yes/No