Punjab-Haryana High Court
Damini Sharma vs Harish Sharma on 21 July, 2010
Author: Rajesh Bindal
Bench: Rajesh Bindal
T.A. No. 208 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Transfer Application No. 208 of 2010 (O&M)
Date of Decision: 21.7.2010.
Damini Sharma ....Applicant
Versus
Harish Sharma
...Respondent
CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Naveen S. Bhardwaj, Advocate for the applicant.
Mr. K.S. Boparai, Advocate for the respondent.
RAJESH BINDAL J Prayer in the present application is for transfer of divorce petition, titled as Harish Sharma Vs. Damini Sharma filed under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') by the respondent-husband from the Court of District Judge, Ludhiana to the Court of competent jurisdiction at Panchkula.
Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites at Ludhiana on 10.2.1993. Out of the wedlock two children (one son and one daughter) were born on 6.12.1993 and 13.4.1996, respectively at Chandigarh. As respondent and his father forcibly dispossessed the applicant from the house, she filed a Civil Suit in the Court of Civil Judge (Junior Division), Panchkula and the same is pending. As all efforts for reconciliation thereafter remained futile, the applicant filed an application under Sections 12, 18, 19, 20 and 22 of The Protection of Women from Domestic Violence Act, 2005 (for short 'the DV Act') against the respondent which is pending before Judicial Magistrate Ist Class, Panchkula and an application filed under Section 125 Cr.P.C. is pending before Chief Judicial Magistrate, Panchkula. The applicant also got a case registered under Section 323, 406 and 498-A IPC against the respondent at Panchkula. As a counter blast to the aforesaid cases filed by the applicant, the respondent filed a divorce petition at Ludhiana in March 2010. The submission is that it is difficult T.A. No. 208 of 2010 2 for the applicant to attend the hearings of the divorce petition filed by the respondent-husband at Ludhiana who is living with two children. To make both ends meet and cater to the needs of growing up children she has taken up job in a private school at Panchkula. It is the convenience of the wife which is to be seen. It is further submitted that the husband is posted at Bathinda, though his parents are residing at Chandigarh. Considering the aforesaid facts, the divorce petition filed by the husband at Ludhiana be transferred to the Court of competent Jurisdiction at Panchkula.
On the other hand it is submitted by learned counsel for the respondent that jurisdiction to try the present case lies at Ludhiana as parents of wife-applicant are residing there. It is further submitted, in case need be, the divorce petition be transferred to Chandigarh as he apprehends further harassment at Panchkula because other cases are pending at Panchkula.
Heard learned counsel for the parties and perused the record. The issue regarding transfer of case from one Court to another has been discussed by Courts in numerous judgments. In Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others, 2008 (3) SCC 659, the Hon'ble Supreme Court laid down certain parameters to be considered for the purpose, while opining that the same cannot be treated as exhaustive but illustrative in nature. The relevant Para-14 thereof is extracted hereunder:
"Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket 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 T.A. No. 208 of 2010 3 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 proceedings. 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."
The issue regarding transfer of matrimonial proceedings almost in similar circumstances came up for consideration before this Court as well in a number of cases earlier. It has been the consistent view that primarily the convenience of the wife is to be given weightage for ordering transfer of proceedings at or near the place where she is residing.
In Veena alias Arti v. Pawan Kumar, 1998(1) RCR (Civil) 558 (P&H) : 1998 (1) M.L.J. 316, the proceedings under Section 9 of the Act filed by the husband at Sultanpur Lodhi were ordered to be transferred to Amritsar by this Court. In Smt. Sonia v. Rajnish Kumar Arora, 1997 (2) RCR (Civil) 361 (P&H) :
1998 (1) M.L.J. 37, this Court ordered transfer of petition under Section 9 of the Act from Ludhiana to Amritsar. On yet another occasion in Suman v. Gopal, 2003 (4) RCR (Civil) 26, having regard to the observations of the Supreme Court in Sumita Singh v. Kumar Sanjay and another, A.I.R. 2002 SC 396 and Neelam Kanwar v. Devinder Singh Kanwar, 2001 (1) M.L.J. 509 (S.C.), this Court ordered the transfer of matrimonial proceedings from Gurgaon to Faridabad.
The relevant observations from Neelam Kanwar's case (supra) are extracted as under:-
"We are midful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reasons not to do so. No special reason is T.A. No. 208 of 2010 4 shown."
In Milli vs. Mukesh Kumar, 2005 (4) RCR (Civil) 422, a petition filed under Section 9 of the Act, for restitution of conjugal rights, was ordered to be transferred from Jagadhari to Amritsar on an application filed by the wife.
As is evident from the cases referred to above, the principle of law with regard to transfer of cases especially regarding matrimonial disputes is quite settled, where consistent opinion is that it is always the convenience of wife which has to be given due weightage for ordering the transfer of proceedings at or near the place where the wife is residing.
In the present case, the applicant-wife is residing at Panchkula. The other cases filed by her which are prior in time, are also pending at Panchkula. The divorce petition was subsequently filed by the husband at Ludhiana. It would certainly be difficult and in-convenient for the wife living with two children, to attend hearing of the divorce petition at Ludhiana. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the divorce petition filed by the respondent which is pending in the Court of District Judge, Ludhiana titled as Harish Sharma Vs. Damini Sharma, deserves to be transferred to the District Judge, Chandigarh.
Ordered accordingly. Parties are directed to appear before District Judge, Chandigarh on 9.9.2010 for further proceedings. The District Judge may either keep the same with him or entrust the same to any other Additional District Judge.
The application stands disposed of accordingly.
(RAJESH BINDAL) 21.7.2010. JUDGE Reema