Nishu v. Shiv Kumar

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision: 02.08.2022 Nishu ....Petitioner

Versus

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

Present:

Mr. Nitish Yadav, Advocate for the petitioner.

Mr. R.K. Girdhwal, Advocate for the respondent.

ARVIND SINGH SANGWAN J. (Oral) Prayer in this petition is for transfer of the petition filed under Section 13 of the Hindu Marriage Act, pending in the Family Court, Jhajjar to the competent Court of jurisdiction at Rewari. Vide order dated 15.12.2021, the following order was passed:- "On 06.01.2021, notice of motion was issued and the Trial Court was directed to adjourn the proceedings beyond the date fixed by this Court. On 23.03.2021, learned counsel for the petitioner was directed to deposit the process fee and fresh notices were ordered to be issued since learned counsel for the petitioner had not filed the process fee. On 24.09.2021, none had appeared on behalf of the applicant-petitioner in CM-9111-CII-2021 which was filed for correction in the name of the respondent. On 04.10.2021, fresh notices were issued on filing of process fee.

As per the office report, process fee has not yet again been filed by learned counsel for the petitioner. Learned counsel for the petitioner seeks one last opportunity to serve the respondent.

In the interest of justice, one final opportunity is

granted to the petitioner to serve the respondent. On filing of process fee, let fresh notice be issued to the respondent returnable 12.01.2022."

Counsel for the petitioner has argued that on account of a matrimonial discord, the petitioner has filed a petition under Section 125 Cr.P.C. at Rewari.

Counsel for the petitioner has further submitted that the respondent/husband has filed the petition under Section 13 of the Hindu Marriage Act, as a counter-blast, before the Principal Judge, Family Court, Jhajjar.

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 55 Kms from Rewari to Jhajjar.

Counsel for the petitioner has further contended that the petitioner is having a minor child, who is living in her care and custody and she is facing difficulty to defend the case as she has to travel from Rewari to Jhajjar.

Counsel for the petitioner has relied upon the judgments "Sumita Singh vs Kumar Sanjay", 2002 SC 3581 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.

As per the office report, the respondent has been served through the counsel appearing in the trial Court, however, there is no representation on his behalf.

After hearing the counsel for the petitioner, 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 13 of the Hindu Marriage Act, pending before the Family Court, Jhajjar will be transferred to the competent Court of jurisdiction at Rewari.

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

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

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

(ARVIND SINGH SANGWAN) JUDGE 02.08.2022 yakub Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No