Punjab-Haryana High Court
Sushila vs Ravinder on 30 October, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
VINOD KUMAR
2014.11.05 14:29
I attest to the accuracy and
authenticity of this document
Chandigarh
TA No.174 of 2013 (O&M) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
TA No.174 of 2013 (O&M)
Date of Decision:30.10.2014
Smt. Sushila ...Petitioner
Versus
Ravinder ...Respondent
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
Present: Mr. Sumeet Sangwan, Advocate,
for the petitioner.
Mr. Rakesh Dhiman, Advocate,
for the respondent.
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RAKESH KUMAR JAIN, J.
This petition is filed under Section 24 read with Section 151 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") for transfer of the petition filed under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (here-in-after referred to as the "Act") by the respondent against the petitioner at District Court, Jhajjar to the competent Court at Bhiwani.
The brief facts of the case are that marriage of the petitioner with the respondent was solemnized on 24.06.2010 at village Shahwas, Tehsil Charkhi Dadri, District Bhiwani. They both resided at village Amboli, Tehsil Matanhail, District Jhajjar after their marriage and a female child was born to them on 09.05.2011. However, the respondent has filed a VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [2] ***** petition under Section 13(1)(ia) of the Act for seeking divorce from the petitioner in the District Court, Jhajjar.
The petitioner has moved this application for transfer of the case from District Court, Jhajjar to the District Court, Bhiwani, alleging that she being a lady with a minor child living in the house of her father at village Shahwas, Tehsil Charkhi Dadri, District Bhiwani and having no source of her own, finding it difficult to attend the proceedings at Jhajjar which is at a distance of 60 Kms. from her house. It is also alleged that she had filed a petition under Section 125 of the Code of Criminal Procedure, 1973 (here-in-after referred to as the "Cr.P.C.") for maintenance for herself and her female child which is pending in the Family Court at Bhiwani in which the respondent had already appeared and the divorce petition has been filed as a counter-blast to that petition. It is also alleged that her father is a poor person, bringing up their family but the respondent had threatened her that he would take the child forcibly and also threatened with dire consequences, therefore, anticipating that harm could be caused to her, the prayer has been made that the case pending at Jhajjar, filed at the instance of the respondent, be transferred to the District Court, Bhiwani, where there is also a Family Court.
Pursuant to the notice, the respondent has filed the reply alleging that the distance from Shahwas to Bhiwani is only 45 Kms., whereas the Jhajjar Court is at a distance of 50 Kms., therefore, the problem of travelling is only a lame excuse in the name of inconvenience and that the petitioner has also lodged an FIR against the respondent by levelling false VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [3] ***** and frivolous allegations of demand of dowry.
Learned counsel for the petitioner has argued that the reason for transfer of the matrimonial proceedings from the Court at Jhajjar to the Court at Bhiwani is in nutshell the inconvenience of the petitioner being a lady with an infant and that the divorce petition filed by the respondent as a counter-blast to the petition filed by her under Section 125 of the Cr.P.C. at Bhiwani.
On the other hand, the sum and substance of the argument raised by learned counsel for the respondent is that since the distance of the District Judge, Jhajjar from Shahwas, present residence of the petitioner, is 50 Kms., whereas the District Court, Bhiwani is about 45 Kms. away from Shahwas, therefore, there is hardly any reason of inconvenience being caused to the petitioner on account of her travelling with an infant to the Court at Jhajjar. Insofar as her allegation that divorce petition has been filed as a counter-blast to the petition filed under Section 125 of the Cr.P.C., his submission is that the divorce petition has been filed on the ground of physical and mental cruelty being caused by the petitioner to the respondent as she is not cooperating in performance of the sexual intercourse.
I have heard learned counsel for the parties and examined the available record with their able assistance.
This Court has experienced a spurt of litigation in the name of the transfer applications, generally at the instance of the wife, in the matrimonial proceedings, filed by the husband at the place of his own residence. The jurisdiction of this Court under Section 24 of the CPC is VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [4] ***** invoked which gives general power of transfer and withdrawal. In order to understand the problem at hand, it would be relevant to refer to Section 24 of the CPC at this stage which reads as under:-
"24. General power of transfer and withdrawal.- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [5] ***** thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes."
While tracing the precedents of various High Courts and the Apex Court, the various grounds for transfer of matrimonial proceedings came to my notice, which are being discussed under following heads:-
Age of wife
1. In the case of Sapna Agarwal v. Om Prakash Jalan, AIR 2009 SC 1641, the Supreme Court transferred the matrimonial proceedings from Family Court of Cuttack, Orissa to Family Court of Jaipur, Rajasthan considering the materials on record and the age of the wife.
2. In the case of Fatema v. Jafri Syed Husain(Parvez.), AIR 2009 Supreme Court 1773, the Supreme Court transferred the matrimonial proceedings from the Family Court at Aurangabad to the Civil Court at Srinagar, VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [6] ***** Jammu and Kashmir considering the fact that the wife was only 22 years of age and, therefore, it would be difficult for her to attend the Court proceedings at Aurangabad from Srinagar.
Family conditions of the wife
1. In the case of Leena Mukherjee v. Rabi Shankar Mukherjee, 2002(10) SCC 480, the Supreme Court transferred the matrimonial proceedings pending in the Court of the Additional District Judge, Delhi to the District Judge, Burdwan, West Bengal, holding the plea of the wife to be valid that she is distressed woman without any financial resources and has nobody to accompany her to Delhi.
2. In the case of Reena Bahri v. Ajay Bahri, (2002) 10 SCC 136, the Supreme Court transferred the matrimonial proceedings pending in the Court of the Additional District Judge, Karkardooma, Delhi to the Court of the District Judge, Navi Mumbai, Maharashtra on the ground that there is a very small child of 3 years with the wife in Bombay and the wife does not have anybody who can conveniently accompany her to Delhi.
3. In the case of Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani, AIR 2009 Supreme Court 1374, the Supreme Court transferred the matrimonial VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [7] ***** proceedings pending at the Family Court at Indore, Madhya Pradesh to the Family Court at Bandra, Mumbai, Maharashtra where the distance was long (Indore to Bombay - 900 Kms.) and wife has no one in the family to escort her to Indore.
4. In the case of Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, 2005(12) SCC 237, the Supreme Court transferred the matrimonial proceedings pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra to the Family Court at Satana, Madhya Pradesh on the basis that the wife was staying with her brother and both of them were not financially sound to contest the litigation at Mumbai, though the husband opposed the application by contending that it was equally inconvenient for him to go to Satana and he was willing to pay the expenses for her travel to Mumbai. The Apex Court held that in such matters, convenience of wife is to be preferred over the convenience of the husband.
5. In the case of Pratbiha Khemka v. Sanjay Kumar Khemka, 2004(13) SCC 686, the Supreme Court transferred the matrimonial proceedings from Family Court, Satna to the District Judge, Lucknow on the ground that it is difficult for wife to travel 600 Kms. with VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [8] ***** her aged ailing parents leaving her minor child who has recently had a cataract operation.
6. In the case of Anju v. Sanjay, 2011(6) RCR (Civil) 12, the transfer was allowed on the ground that the wife is living with her parents and having a minor child.
7. In the case of Deepika v. Vinod Bhalla, 2004(3) PLR 751, this Court transferred the matrimonial proceedings from Ambala to Panchkula on the ground that the wife is residing in Panchkula along with her parents and she would always be dependent on her parents emotionally, morally and financially.
However, in the case of Kalpana Thakar v.
Deviprakash Thakar, 1996(11) SCC 96, the Supreme Court dismissed the transfer application filed by the wife on the ground that husband's old and ailing mother living with him and requiring frequent medical check-up and constant care.
Wife having custody of minor child
1. In the case of Anindita Das v. Srijit Das, 2006(9) SCC 197, transfer was not allowed by the Supreme Court to the wife where the child was 6 years of age and grandparents were available to look after the child.
2. In the case of Jaishree Banerjee (Smt.) v. Abhirup Banerjee, (1997) 11 Supreme Court Cases 107, the VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [9] ***** Supreme Court allowed the transfer of matrimonial proceedings from the Court of Addl. District Judge, Delhi to the Family Court, Varanasi on the ground that the wife is staying with a child, aged 2-½ years who cannot be left alone in Varansi.
3. In the case of Gaitri Jaitly v. Shashi Mohan Jaitly, 1995 AIR (SCW) 1215, the Supreme Court transferred the matrimonial dispute pending in the Family Court at Kota, Rajasthan to the District Judge, Delhi on the ground of convenience of the wife who is residing in Delhi and is mother of two children who are aged 8 years and 5 years.
4. In the case of Menka Rani v. Happy Kumar, 2011(1) HLR 243, this Court transferred the matrimonial proceedings from Ludhiana to Mansa on the ground that the wife is having minor child and it is difficult for her to travel to Ludhiana from Bathinda with her minor child. Economic conditions of the wife
1. In the case of Anindita Das v. Srijit Das, 2006(9) SCC 197, transfer was not allowed by the Supreme Court to the wife on the ground of financial resources as the husband was ready to pay all expenses for travel and stay of the wife and her companion for every visit when the wife is required to attend the Court at Delhi. VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh
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2. In the case of Milli v. Mukesh Kumar, 2005(4) R.C.R. (Civil) 422, this Court had transferred the matrimonial proceedings from Jagadhri to Amritsar on the ground that the wife is a poor lady having no independent source of income and is experiencing a lot of inconvenience while visiting Jagadhri.
3. In the case of Leena Mukherjee v. Rabi Shankar Mukherjee, 2002(10) SCC 480, the Supreme Court transferred the matrimonial proceedings pending the Court of the Additional District Judge, Delhi to the District Judge, Burdwan, West Bengal on the ground that the wife has no financial resources and gets meager income by way of maintenance.
4. In the case of Seema v. Rakesh Kumar, 2000(9) SCC 271, the transfer application filed by the wife was allowed on the ground of inability of the wife to defend the case at the husband's place due to financial constraints.
Physical health
1. In the case of Gunjan Bansal Vs. Atul Bansal, 2011(7) RCR (Civil) 403, transfer application filed by the wife was allowed on the ground that the wife is living with her parents and seven years old child and because of lack of finances and the ground taken by the husband that he VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [ 11 ] ***** is suffering from bronchial asthma was not found appropriate for rejection.
2. In the case of Smt. Neeraja Gupta Vs. Dr. Rajesh Gupta, 2002(1) HLR 273, this Court allowed the transfer application filed by the wife but from Jind to Mansa instead of from Jind to Abohar on the ground that convenience of the wife has to be looked into.
3. In the case of Boby Rani alias Babita Vs. Suresh Kumar, 2011(1) HLR 284, this Court has allowed the transfer petition on the ground that convenience of the wife is to be seen. In this case wife is 70% handicapped. Profession of the husband
1. In the case of Anita Laxmi Narayan Singh Vs. Laxmi Narain Singh, 1992(2) SCC 562, the Supreme Court allowed the transfer petition on the ground that the husband is a high ranking railway officer who would be entitled to travel facilities.
2. In the case of Smt. Kalpana Deviprakash Thakar Vs. Dr. Deviprakash Thakar, 1996 (11) SCC 96, the Supreme Court dismissed the transfer petition filed by the wife considering the fact that being a medical practitioner, patients of the husband would suffer.
3. In the case of Shweta Bhardwaj Vs. Vivek Bhardwaj, 2001 AIR (SCW) 4772, the transfer application filed by VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [ 12 ] ***** the wife was allowed on the ground that she has no source of income and could not travel along from Himachal to Darjeeling and that husband would not suffer any inconvenience.
Convenience of the wife e.g. travelling, connectivity of places and travelling expenses etc.
1. In the case of Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374, the transfer petition filed by the wife was allowed considering the distance between two places and the fact that wife has no one in family to escort her.
2. In the case of Smt. Kalpana Deviprakash Thakar Vs. Dr. Deviprakash Thakar, 1996 (11) SCC 96, the Supreme Court dismissed the transfer petition filed by the wife considering the fact that being a medical practitioner, patients of the husband would suffer and Palanpur, where the wife is residing, is connected by train with Bombay, where she has come near relations, and she will not face any much difficulty in undertaking the journey.
3. In the case of Sumita Singh Vs. Kumar Sanjay and another, 2001 (10) SCC 41, the transfer petition filed by the wife was allowed on the ground that she is living and working in Delhi, has no one with whom she can stay in Bihar and her convenience must be looked at. VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh
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4. In the case of Smt. Rama alias Sarita Vs. Ashok Kumar, 2001(3) RCR (Civil) 424, this Court allowed the transfer application filed by the wife on the ground that transfer of matrimonial case to the place where the lady is residing would be preferred unless it is shown that there are special reasons not to do so.
5. In the case of Shiv Kumari Devendra Ojha Vs. Ramajor Shitla Prasad Ojha and others, AIR 1997 Supreme Court 1036, the Supreme Court dismissed the transfer application filed by wife on the ground that husband agreeing to bear expenditure of travel and stay of wife whenever she attends Court. The application was also dismissed on the ground that the plea taken by the wife that no advocate was available at place where case was pending, is not tenable.
6. In the case of Pratibha Khemka Vs. Sanjay Kumar Kehmka, 2004(13) SCC 686, the Supreme Court allowed the transfer petition filed by the wife on the ground that it is difficult for wife to travel 600 kms with her aged ailing parents leaving her minor child and her convenience has to be kept in mind.
7. In the case of Kulwinder Kaur alias Kulwinder Vs. Kandi Friends Education trust and others, 2008(3) SCC 659, the Supreme Court while remanding the case VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [ 14 ] ***** back to high Court observed that if the Court feels that the plaintiff or the defendant is not likely to have a 'fair trail' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to transfer the case.
8. In Amita Shah v. Virender Lal Shah (2003) 10 SCC 609, the Supreme Court allowed the transfer petition observing that the convenience of wife and child must be considered.
However, in the case of Veena v. Vinay Kumar, 1992 (1) HLR 380, the Hon'ble Punjab & Haryana High Court dismissed the application under Section 24 of CPC instituted by the wife for transfer of divorce petition on the ground that she pleaded for her convenience alone and failed to make out a case for transfer of proceedings at Jagadhri to Ferozepur in terms of Secton 24 CPC. The convenience of one party to the litigation i.e. wife alone, cannot be accepted as of rule. The Court is required to adopt a balanced view of convenience of both the parties, of course may be with some premium in favour of the wife.
By and large, I have experienced that the applications in this Court are being filed for transfer of matrimonial proceedings on the ground of inconvenience of the wife on account of travelling. Inconvenience in VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [ 15 ] ***** travelling is a subjective term and even the petitions have been filed for tranferring the case from Chandigarh to Panchkula, Chandigarh to Mohali and vice versa.
Even in this case, the petitioner has alleged that she had to travel to Jhajjar which is at a distance of 60 Kms. from her place of abode, i.e. village Shahwas, Tehsil and District Bhiwani, whereas the respondent has alleged that the distance from Shahwas and the Court at Jhajjar, is 50 Kms. and the Court at Bhiwani is at a distance of 45 Kms. Thus, as a matter of fact, there is no inconvenience to the petitioner in travelling five Kms. more if she attends the Court at Jhajjar instead of Bhiwani.
Now, the question would be whether it could be termed as inconvenience to the petitioner for the purpose of transfer of the case?
I was wondering as to what could be the inconvenience to the wife/applicant seeking transfer of the case only on account of the travelling. Supposing the distance between the residence of the petitioner and of the Court is such which consumes 3-4 hours in travelling on one side, then of course, the petitioner has to start travelling in the odd hours in the morning about 6.00 a.m., which would also depend upon the bus service/mode of transportation and if the petitioner is free from the Court at 4.00 p.m. in the evening, then again, she has to travel for another 3-4 hours to reach back her destination which would again depend upon the availability of the mode of transportation. It again depends upon the weather also because in the winters, it is difficult to travel in the early hours of the morning and in the late hours of the evening alone or with a small child in the bus which would VINOD KUMAR 2014.11.05 14:29 I attest to the accuracy and authenticity of this document Chandigarh TA No.174 of 2013 (O&M) [ 16 ] ***** also depend upon the availability of the mode of transportation.
Thus, in the present case, the reason assigned by the petitioner for transfer of her application because of inconvenience, is found to be without any merit.
Resultantly, the present transfer application is hereby dismissed.
October 30, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE