Indian Kanoon - Search engine for Indian Law

1. This application under Section 24 of the Code of Civil Procedure has been instituted by the wife for the transfer of a divorce petition under Sections 12(1)(d)/13 and 14 of the Hindu Marriage Act, filed by her husband in the competent Court at Jagadhri to a Court of competent jurisdiction at Ferozepur where she is presently residing in her parental house.

2. The marriage between the parties took place on 4-10-1989. Unfortunately, soon after the marriage strained relationships developed between the parties resulting in their separation and thereafter, petitioner started living with her parents at Ferozepur. On 1-8-1990, the petitioner filed an application under Section 125 of the Code of Criminal Procedure which is pending in the Court at Ferozepur. Simultaneously, she also filed a criminal complaint at Ferozepur under Sections 406/498A of the Indian Penal Code, which is also pending for adjudication. The respondent-husband also filed a petition for anullment of marriage and divorce under Sections 12(1)(d)/13 read with Section 14 of the Hindu Marriage Act on 8-8-1990 at Jagadhri. With the pendency of these proceedings instituted by either of the party, the divorce petition filed an pending in the Court at Jagadhri is sought to be transferred to Ferozepur only on the ground that the petitioner is living with her parents and is unable to persue the case against her at Jagadhri which is at about a distance of 300 kms. from Ferozepur. It has also been alleged that the defence of the petitioner in the proceedings at Jagadhri would be prejudiced as petitioner being lady, would not be able to travel on each date of hearing and to incur heavy travelling expenditure. It is also alleged that in the interest of justice, petition filed by the husband be transferred to some Court at Ferozepur where he application for maintenance and criminal complaint as detailed above, had been filed prior to the divorce petition in question.

3. The respondent has strongly opposed the application. In the written statement, respondent has alleged that soon after leaving Jagadhri alongwith her uncle on 10-7-1990, the petitioner moved a petition under Section 125 Cr. P.C as well as the aforesaid criminal complaint within twenty days. It is also alleged that in the divorce petition filed by him at Jagadhri, the petitioner has been served and in spite of five adjournments, no written statement has been filed and is even avoiding appearance in the Court for reconciliation as ordered by the Court and no case for transfer is made out in terms of Section 24 of the Code of Civil Procedure.

7. As per allegations in the petition, the only ground made out is that the petitioner being lady, would not be in a position to come to attend the proceedings at Jagadhri which is at a distance of 300 kms. from Ferozepur. Convenience of a party is one of the factors for the transfer of the case. But this convenience should not be of one party but should be of both the parties. Jalandhar is nearer to Ferozepur than to Jagadhri. This offer having been turned down, it seems that the ground taken in the petition, is not bona fide on. The act and conduct as expressed by the petitioner during the proceedings is indicative of the fact that she want the respondent to be at Ferozepur to attend the proceeding at any cost.

10. It could be conveniently said that the aforesaid judgments are not applicable to the facts of the case in hand. Still, analytical examination of facts of each case, has been made with a view to show their inapplicability to the facts and circumstances of the case in hand.

11. The petitioner has miserably failed to make out a case for transfer. She has pleaded for her convenience alone which as already observed, is not bona fide one particularly when a very reasonable and legitimate offer of transfer of the case between the parties to the competent Courts at Jalandhar is not acceptable to her. Each case is to be viewed and decided, on the basis of its own facts. The convenience of one party to the litigation i.e. wife alone, cannot be accepted as of rule for the transfer of a case. 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. In this case, transfer of the case shall certainly result in inconvenience to the respondent/husband and his material witnesses if the trial is transferred to a Court at Ferozepur. Even otherwise, a very strong case is to be made out for transfer of the case from an ordinary Court of competent jurisdiction. The parties last resided at Jagadhri and it is only at this place that where a divorce petition is to be filed and tried. The petitioner has miserably failed to make out a case for taking the case out of the hands of a Court of competent jurisdiction at Jagadhri in terms of Section 24 of the Code of Civil Procedure.