Punjab-Haryana High Court
Mini Phogat vs Karminder on 30 May, 2017
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
TA No.308 of 2017 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
TA No.308 of 2017
Date of decision: 30.05.2017
Mini Phogat
... Applicant
Vs.
Karminder
... Respondent
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Vikas Gulia, Advocate
for the applicant.
None for the respondent.
*******
RAMESHWAR SINGH MALIK, J. (ORAL)
Applicant-wife, by way of instant transfer application under Section 24 read with Section 151 of the Code of Civil Procedure (for short 'CPC'), seeks transfer of a petition under Section 13 of the Hindu Marriage Act, 1955 ('the Act' for short) titled as Karminder Vs. Mini Phogat filed by the respondent-husband from Rewari to Sonepat.
Notice of motion was issued.
Learned counsel for the respondent appeared on the last date of hearing and sought time and on his request, case was adjourned for today. However, neither anybody has come present on behalf of the respondent to oppose the present transfer application nor any request for pass over has been made.
Heard learned counsel for the applicant.
It has gone undisputed before this Court that the applicant-wife, 1 of 7 ::: Downloaded on - 10-06-2017 00:25:21 ::: TA No.308 of 2017 2 along with her minor child, is living at Sonepat. Respondent-husband is not paying any amount of maintenance even for the minor child. Distance between Rewari and Sonepat is about 120 kilometers. Other litigations between the parties, at the instance of the applicant-wife, are also pending at Sonepat.
In view of the abovesaid undisputed fact situation of the case, this Court feels no hesitation to conclude that it is just and expedient to transfer the petition under Section 13 of the Act from Rewari to Sonepat. It is so said because all the abovesaid undisputed facts clearly go in favour of the applicant-wife and against the respondent-husband. In the circumstances of the case, it will not only be inconvenient but would be very difficult for the applicant-wife to go from Sonepat to Rewari to pursue the litigation imposed on her by the respondent-husband under Section 13 of the Act. Convenience of the wife in transfer applications, like the present one, arising out of a matrimonial dispute, is one of the relevant consideration. Further, distance between the two places, financial status of the wife, her source of income, her age as well as her responsibility for bringing up the minor child, are the relevant factors to be considered, while deciding the transfer applications like the present one.
The cardinal principle for exercise of power under Section 24 of the Civil Procedure Code is that the ends of justice demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever the Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of either of the parties, the social strata of the spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereto and circumstances of either of the parties in 2 of 7 ::: Downloaded on - 10-06-2017 00:25:22 ::: TA No.308 of 2017 3 eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Generally, it is the wife's convenience which must be looked at by the Courts, while deciding a transfer application.
The view taken by this Court also finds support from the following judgments of the Hon'ble Supreme Court, as well as different High Courts, including this Court: -
1. Mrs. Maneka Sanjay Gandhi and another Vs. Miss Rani Jethmalani, AIR 1979 (SC) 468.
2. Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, 1990 (1) SCC 4.
3. Savitri Vs. Hari Chand, AIR 1999 SC 55
4. Neelam Kanwar Vs. Devinder Singh Kanwar, 2000 (10) SCC
589.
5. Sumita Singh Vs. Kumar Sanjay and another, AIR 2002 (SC)
396.
6. Rachna Kanodia Vs. Anuk Kanodia, 2002 (1) MLJ 86
7. Archna Singh Vs. Alok Partap Singh, 2002 (2) MLJ 568
8. Mangla Patil Kale Vs. Sanjeev Kumar Kale, 2003 (10) SCC 280.
9. Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR 2009 (SC) 1773.
10. Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani, AIR 2009 (SC) 1374.
11. Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others, AIR 2008 SC 1333.
12. Nisha Vs. Dharmenda Pratap Singh Rathore, 2015 (3) All. LJ
168.
13. M.V. Rekha Vs. Sathya, 2011 (2) HLR 34.
14. Sneha Vs. Vinayak, 2013 ILR (Karnataka) 165.
15. Rimpal Vs. Balinder Kumar, 2010 (7) RCR (Civil) 286.
16. Anju Vs. Sanjay, 2011 (6) RCR (Civil) 112.
17. Komal Devi @ Komal Kumari @ Komal Rani Vs. Harbhajan Singh, 2012 (8) RCR (Civil) 84.
3 of 7 ::: Downloaded on - 10-06-2017 00:25:22 ::: TA No.308 of 2017 4 The relevant observations made by the Hon'ble Supreme Court in para 14 of its judgment in Kulwinder Kaur @ Kulwinder Gurcharan Singh's case (supra), which can be gainfully followed in the present case, read as under: -
"Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have
4 of 7 ::: Downloaded on - 10-06-2017 00:25:22 ::: TA No.308 of 2017 5 a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order."
Again, deliberating on an identical issue, in the case of Dr. Subramaniam Swamy (supra), the Hon'ble Supreme Court held as under: -
"The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has, therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude- for the ends of justice- have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be
5 of 7 ::: Downloaded on - 10-06-2017 00:25:22 ::: TA No.308 of 2017 6 no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone.
(emphasis supplied)"
The abovesaid law laid down by the Hon'ble Supreme has also been followed by this Court in order dated 16.03.2016 passed in TA No.945 of 2015 (Sushma and others Vs. Kapil @ Sahil Bansal) and TA No.797 of 2015 (Jagroop Kaur Vs.Varinder Singh Bhela @ Tony) which, in turn, were based on the judgments of the Hon'ble Supreme Court, as well as different High Courts, including this Court.
Reverting to the facts of the case in hand and respectfully following the law laid down by the Hon'ble Supreme Court as well as different High Courts, including this Court, it is unhesitatingly held that applicant-wife is entitled for getting the petition under Section 13 of the Act transferred from Rewari to Sonepat, so as to enable her to pursue the litigation without facing any undue hardship or harassment at the hands of the respondent-husband. It is the settled principle of law that justice is not only to be done but it should also appear to have been done. If the applicant-wife is forced to go from Sonepat to Rewari, it would amount to denial of justice to her. Thus, to strike a balance between the parties with a view to do complete and substantial justice and proceeding on a holistic view of the matter, this Court is of the considered view that it would be just and expedient to transfer the petition under Section 13 of the Act from Rewari to Sonepat.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the
6 of 7 ::: Downloaded on - 10-06-2017 00:25:22 ::: TA No.308 of 2017 7 considered view that instant transfer application deserves to be accepted and the same is hereby allowed. Petition under Section 13 of the Act titled as Karminder Vs. Mini Phogat filed by the respondent-husband is ordered to be transferred from Rewari to Sonepat.
Accordingly, the learned District Judge, Rewari is directed to send complete record of the abovesaid petition to the learned District Judge, Sonepat at an early date but in any case within a period of one month from the date of receipt of certified copy of this order.
The learned District Judge, Sonepat is also directed either to decide the case himself or assign it to the learned Court of competent jurisdiction, for an early decision, in accordance with law.
Parties through their counsel are directed to appear before the learned Court at Sonepat on 07.07.2017.
With the abovesaid observations made and directions issued, present transfer application stands disposed of, however, with no order as to costs.
[ RAMESHWAR SINGH MALIK ]
30.05.2017 JUDGE
vishnu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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