Punjab-Haryana High Court
Arti Sharma Alias Aarti Sharma vs Shammi Kumar on 23 April, 2024
Author: Vikas Suri
Bench: Vikas Suri
Neutral Citation No:=2024:PHHC:057374
2024:PHHC:057374
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
105
TA-468-2024 (O&M)
Date of Decision: 23.04.2024
Arti Sharma alias Aarti Sharma
...Petitioner
Versus
Shammi Kumar
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS SURI
Present:- Mr. Rajeev Dev Sharma, Advocate,
for the petitioner.
*****
VIKAS SURI, J.
1. Prayer in this petition filed by the petitioner-wife under Section 24 of the Code of Civil Procedure, 1908, is for transfer of the petition filed by the respondent-husband, under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act'), HMA-386-2023, titled as Shammi Kumar vs. Aarti Sharma, pending before the learned Principal Judge, Family Court, Gurdaspur, to a Court of competent jurisdiction at District Pathankot.
2. Learned counsel for the petitioner submits:-
i) That the parties were married on 03.12.2022 at Pathankot.
ii) That it is alleged that the respondent and his family started maltreating the petitioner on the pretext of non-fulfilment of demand of dowry and she was forced to leave the matrimonial house on 24.05.2023.
iii) That the petitioner-wife is living separately from the respondent-husband and is living with her parents at village 1 of 6 ::: Downloaded on - 04-05-2024 03:37:10 ::: Neutral Citation No:=2024:PHHC:057374 TA-468-2024 (O&M) -2- 2024:PHHC:057374 Begowal Taragarh, Tehsil and District Pathankot.
iv) That the petitioner is unemployed, having no source of income and fully dependent upon her parents. The respondent is serving in the Indian Army and earning more than Rs.70,000/- per month, besides he is having many moveable and immoveable properties. The respondent is not paying anything to the petitioner towards maintenance.
v) That the proceedings arising out of petitions,
(a) under Section 125 Cr.P.C. (pending for 16.05.2024),
(b) Criminal complaint under the Protection of Women from Domestic Violence Act, 2005 (Pending for 16.05.2024), and
(c) Case FIR No.12, dated 14.02.2024, under Sections 498-A, 406, 323, 506 and 120-B IPC, registered at Police Station Taragarh, District Pathankot, filed by the petitioner-wife, are pending in the Courts of competent jurisdiction at Pathankot.
vi) That the distance between place of residence of the petitioner-
wife i.e. village Begowal Taragarh, Tehsil and District Pathankot and the place of proceedings under Section 9 of the Act, filed by the respondent-husband, is about 20 kms, but she is unable to attend the proceedings alone without any male member accompanying her. The availability of public transport from the village is also not adequate.
3. I have heard learned counsel for the petitioner and gone through the material available on record.
4. Besides the facts as noticed hereinabove, 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, AIR 2022 SC 4318, wherein the Apex Court 2 of 6 ::: Downloaded on - 04-05-2024 03:37:11 ::: Neutral Citation No:=2024:PHHC:057374 TA-468-2024 (O&M) -3- 2024:PHHC:057374 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 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, AIR 2002 SC 396 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."
6. Thus, this Court is of the view that while adjudicating a transfer petition initiated by the wife in the context of a matrimonial dispute, the Court must take into account a comprehensive array of the following factors:-
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(a) Economic condition and earning capacity of the parties, i.e. husband and wife;
(b) Social standing of the wife and her dependency on her parents;
(c) Custody of any minor children involved;
(d) Education of the children, if any;
(e) Physical well-being of both, i.e. wife and husband;
(f) Pending litigation(s) between the parties including
criminal cases, if any;
(h) Accessibility of the location from where the wife resides
to the court where the case is pending;
(i) Availability of convenient commuting options
Undoubtedly, only a harmonious consideration of all these vital aspects would ensure a just and equitable decision in such cases.
7. Thus, applying the principles of law, laid down by the Apex Court in N.C.V Aishwarya's case (supra), Sumita Singh's case (supra) and Rajani Kishor's case (supra), this Court deems it appropriate to allow the present petition, by issuing the following directions:-
(i) Petition under Section 9 of the Act, 1955, HMA-386-
2023, titled as Shammi Kumar vs. Aarti Sharma, filed by the respondent-husband, pending before the learned Principal Judge, Family Court, Gurdaspur, is transferred to a Court of competent jurisdiction at District Pathankot.
(ii) The learned District Judge, Gurdaspur, is directed to transfer complete record pertaining to the aforesaid case to learned District Judge, Pathankot.
(iii) The parties through their counsel are directed to appear before the learned District Judge, Pathankot, on 16.05.2024.
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(iv) The learned District Judge, Pathankot, will assign the said petition to the Court of competent jurisdiction.
(v) The concerned Court at Pathankot, shall diligently strive to amicably resolve the marital discord between the parties by referring the matter to the Mediation and Conciliation Centre.
8. 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.1000/- per day, to the petitioner for attending the Court proceedings at District Courts, Gurdaspur, 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 Gurdaspur, in case the respondent opts to contest this petition.
9. I am supported by the decisions rendered by a co-ordinate Bench of this Court in TA No. 1315/2022, titled as Rohini Arora vs. Nitin Talwar; and TA No. 1322 of 2022, titled as Jaswinder Kaur vs. Gurvinder- jeet Singh. Even this Court has followed the aforesaid principle of law in TA-610-2023, titled as Hemal vs. Manuvrat; and TA-406-2024, titled as Meena Rani vs. Surinder Pal Dass.
10. The present petition is disposed of.
11. Pending applications, if any, also stand disposed of.
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12. Copy of this order be sent to both the learned District Judges concerned, for information and necessary compliance.
( VIKAS SURI )
April 23, 2024 JUDGE
harish
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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