Poonam Kumari v. Akash Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH Transfer Application No. 1360 of 2022 Date of decision: 11.11.2022 Poonam Kumari ..........Petitioner vs Akash Singh ...........Respondent CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Sourabh Sheoran, Advocate for the petitioner.
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 "Akash Singh vs Poonam" pending in the Court of Principal Judge, Family Court, Bhiwani to a Court of competent jurisdiction at Mahendergarh.
2. Learned counsel for the petitioner has contended that :- i) that the parties were married on 18.4.2017 according to Hindu rites and rituals.
ii) that a girl child was born out of this wedlock, who is now 4-1⁄2 years old and presently residing with the petitioner. iii) that the petitioner-wife is living separately from the respondent-husband since 24.1.2021 and living with her parents at their mercy at Nimbira, District Mahendergarh. iv) that the petitioner is unemployed, having no source of income and totally dependent upon her parents and the respondent-husband is not paying anything to her towards
maintenance. Rather, the respondent-husband is having two show-rooms of furniture, one in Bhiwani and the other in Village Bapora (Bhiwani).
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, Bhiwani. 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. are pending in the Courts having competent jurisdiction at Mahendergarh.
v) that the distance between place of residence of the petitioner-wife i.e. Mahendergarh 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, Bhiwani, is about 90 kilometers of one side.
vi) that there is no proficient male member in the family of the petitioner to accompany her to the Court at Bhiwani. Moreover, father of the petitioner is suffering from neuro problems and is not able to walk properly and as the petitioner-wife is not getting any maintenance from the respondent-husband, it is very difficult for her to bear the travelling expenses on each date of hearing.
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.
After going through the entire paperbook, considering the fact that issuance of notice to the respondent has the consequences of staying further proceedings before the trial Court, otherwise the petitioner-wife will have to bear the litigation expenses and transportation expenses and in case, notice of motion is issued, even the respondent-husband has to bear the litigation 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 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/630/2022 titled as Akash Singh vs. Poonam, pending in the Court of Principal Judge, Family Court, Bhiwani is transferred to a Court of competent jurisdiction at Mahendergarh.
b) The ld. District Judge, Bhiwani is directed to transfer complete record pertaining to the aforesaid case to District Judge, Mahendergarh.
c) The parties are directed to appear before the District & Sessions Judge, Mahendergarh on 22.12.2022.
d) The District Judge, Mahendergarh will assign the said petition to the Court of competent jurisdiction. 8.
The concerned Court at Mahendergarh 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.
10. However, liberty is granted to the respondent to revive this petition, if he intends to contest the same, provided that:- (a) The respondent will clear all arrears of maintenance amount, if any, in terms of any petition filed by the petitioner either under Section 125 Cr.P.C. or Section 12 of the Domestic Violence Act or Section 24 of the Hindu Marriage Act.
(b) The respondent will file an affidavit giving undertaking to pay Rs.1,000/- per day, to the petitioner for attending the Court proceedings at District Courts, Bhiwani on each and every date of hearing.
(c) The respondent will bring a demand draft of Rs.25,000/-, drawn in favour of petitioner, towards the litigation expenses to pursue the case at District Bhiwani in case the respondent opts to contest this petition.
11.
I am supported in the above by 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.
12.
As already noticed above, since the petition is being disposed of without issuing notice to the respondent, accordingly, in these peculiar circumstances, in order to ensure appearance of the parties before the District Judge, Mahendergarh on 22.12.2022, it is directed that a copy of this order be sent to the respondent through registered post, besides sending a copy of this order to the District Judges concerned through e-mail. Petitioner through her counsel, present in the Court, is directed to ensure her appearance accordingly. Disposed of.
November 11,2022 ( NIDHI GUPTA ) Vijay Asija JUDGE Whether speaking/reasoned YES/NO Whether Reportable YES/NO