Himachal Pradesh High Court
Savita Kumari vs Nikku Ram on 11 March, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 496 of 2015 .
Date of decision: 11.3.2016
Savita Kumari. ...Petitioner
Versus
Nikku Ram. ...Respondent
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No.
rt For the Petitioner: Mr. Varun Rana, Advocate.
For the Respondent: Mr.Y.S. Thakur, Advocate.
Tarlok Singh Chauhan J. (oral).
By medium of this petition under Section 24 of the Code of Civil Procedure, the petitioner has sought transfer of case filed by respondent against her under Section 9 of the Hindu Marriage Act from the Court of learned Civil Judge (Junior Division), Court No. 1, Sunder Nagar to the Court of learned Additional District Judge (III), Kangra.
2. It is borne out from the record that the petitioner has already instituted proceedings for divorce against the respondent and the same are pending adjudication before the Court of learned Additional District Judge (III), Kangra.
3. The instant petition seeking transfer of proceedings is mainly on the grounds of inconvenience, insufficiency of means, compulsory litigations and on the ground that the petitioner has to Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 19:53:55 :::HCHP 2 look after her child who is hardly two years ten months, making it difficult for her to attend the Court at Sunder Nagar.
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4. The respondent has vehemently opposed this request and has argued that mere inconvenience of a party cannot be a ground for transfer of proceedings.
I have heard the learned counsel for the parties and of have gone through the records of the case.
5. Before proceeding any further, I feel that the legal rt position on the issue of transfer of proceedings, especially in matrimonial cases needs to be recapitulated.
6. In Sumita Singh versus Kumar Sanjay and another (2001) 10 SCC 41, it was held by the Hon'ble Supreme Court that in a case where the wife seeks transfer of the petition, then as against husband's convenience, it is the wife's convenience which must be looked at.
7. In Soma Choudhury versus Gourab Choudhaury (2004) 13 SCC 462, it was held by the Hon'ble Supreme Court that once the wife alleges that she has no source of income whatsoever and was entirely dependent upon his father, who was a retired government servant, then it was the convenience of the wife which was required to be looked into and not that of the husband, who had pleaded a threat to his life. It was further observed that if the respondent therein had any threat to his life, he could take police help by making an appropriate application to this effect.
8. In Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi (2005) 12 SCC 237, in a case seeking transfer of the case ::: Downloaded on - 15/04/2017 19:53:55 :::HCHP 3 at the instance of the wife, it was specifically held by the Hon'ble Supreme Court that convenience of wife was the prime .
consideration.
9. Similarly, while dealing with the application for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC of 659, the Hon'ble Supreme Court after analyzing the provisions of Sections 24 and 25 of the Code of Civil Procedure laid down certain rt broad parameters for transfer of cases and it was held:-
"23. 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 the plaintiff or the 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 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."
10. In Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta (2008) 9 SCC 353, the Hon'ble Supreme Court was dealing with a case where the wife had sought transfer of proceedings on the ground that she was having a minor ::: Downloaded on - 15/04/2017 19:53:55 :::HCHP 4 child and it was difficult for her to attend the Court at Palamu, Daltonganj, which was in the State of Jharkhand and at a quite .
distance from Patna where she was now residing with her child.
Taking into consideration the convenience of the wife, the proceedings were ordered to be transferred.
11. Similarly, in Anjali Ashok Sadhwani versus Ashok of Kishinchand Sadhwani AIR 2009 SC 1374, the wife had sought transfer of the case to Bombay from Indore in Madhya Pradesh on rt the ground of inconvenience as there was none in her family to escort her to Indore and on this ground the proceedings were ordered to be transferred.
12. From the conspectus of the aforesaid judgments the broad consensus that emerges is that in dispute of the present kind where the petitioner is residing with her father along with her minor child, it is the convenience of the petitioner which is required to be considered over and above the inconvenience of the husband.
13. Though the petitioner has sought transfer of the proceedings to the Court of learned Additional District Judge (III), Kangra. However, this request cannot be acceded to for the simple reason that the proceedings under Section 9 of the Hindu Marriage Act are required to be tried by the Court of first instance i.e. Civil Judge and not by the Court of District Judge.
14. In view of the aforesaid discussion, the present petition is partly allowed and the proceedings pending before learned Civil Judge (Junior Division), 1, Sunder Nagar in HMA case No. 2- III/2015, titled as Nikku Ram Vs. Savita Kumari are ordered to be ::: Downloaded on - 15/04/2017 19:53:55 :::HCHP 5 transferred to the Court of learned Civil Judge (Senior Division), Kangra. The parties through their learned counsels are directed to appear before the said Court on 23rd April, 2016.
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15. It goes without saying that since the respondent has to travel all the way from Sunder Nagar to Kangra, the learned Civil Judge shall as far as possible fix the case on the same date as is of fixed by the learned Additional District Judge (III), Kangra in the proceedings instituted by the petitioner under Section 13 of the Hindu Marriage Act.
rt With these observations the petition is disposed of, so also the pending application(s), if any, leaving the parties to bear their costs.
(Tarlok Singh Chauhan), Judge.
11th March, 2016 (KRS) ::: Downloaded on - 15/04/2017 19:53:55 :::HCHP