Rajdip Kaur vs Sarmukh Singh on 27 April, 2017

TA No. 169 of 2017 1

HIGH COURT FOR THE STATES OF PUNJAB HARYANA
AT CHANDIGARH

TA No. 169 of 2017
Date of decision: 27.4.2017

Rajdip Kaur

…Applicant

Versus

Sarmukh Singh
…Respondent

CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present: Mr. A.S. Khinda, Advocate
for the applicant.

Ms. Sukhpreet Kaur, Advocate
for the respondent.

RAMESHWAR SINGH MALIK, J. (Oral)

CM No. 9136-CII-2017

Applicant-respondent seeks permission to place on record reply.

Application is allowed, as prayed for.

CM stands disposed of.

TA No. 169 of 2017

Applicant, by way of instant transfer application under Section

24 of the Code of Civil Procedure (for short ‘CPC’), seeks transfer of the

petition under Section 25 of the Guardian and Wards Act, 1890, (‘the Act’ for

short) titled as Sarmukh Singh Vs. Rajdip Kaur, filed by respondent husband

from Kapurthala to Ludhiana.

Notice of motion was issued.

Heard learned counsel for the parties.

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It has gone undisputed before this Court that the minor child,

whose custody is being sought by the respondent-husband, is just three years

old and is staying with his mother-applicant. Matrimonial dispute is also

going on between the applicant and respondent. Applicant wife, along with

minor child, is staying with her parents at Ludhiana. Respondent-husband is

not paying any amount of maintenance either for the applicant or for the

minor child. Since applicant-wife is not having any regular source of

income, she is dependent on her parents. Distance between Kapurthala and

Ludhiana is more than 90 Kms. Other litigation between the parties, at the

instance of the applicant-wife, are also pending at Ludhiana.

After giving anxious consideration to the contentions raised and

careful perusal of the record of the case, this Court is of the considered

opinion that instant one has been found to be a fit case for ordering the

transfer of petition under Section 25 of the Act from Kapurthala to Ludhiana.

It is so said because all the abovesaid undisputed facts clearly go in favour

of the applicant-wife and against the respondent-husband. In the

circumstances of the case, it will not only be inconvenient but would be very

difficult for the applicant-wife to go from Ludhiana to Kapurthala, to pursue

the litigation imposed on her by the respondent-husband. Convenience of the

wife in transfer applications, like the present one, arising out of a

matrimonial dispute, is one of the relevant considerations. Further, distance

between the two places, financial status of the wife, her source of income,

her age as well as her responsibility for bringing up the minor children, are

the relevant factors to be considered, while deciding the transfer applications

like the present one.

The cardinal principle for exercise of power under Section 24 of

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the Civil Procedure Code is that the ends of justice demand the transfer of

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the suit, appeal or other proceeding. In matrimonial matters, wherever the

Courts are called upon to consider the plea of transfer, the Courts have to

take into consideration the economic soundness of either of the parties, the

social strata of the spouses and behavioural pattern, their standard of life

antecedent to marriage and subsequent thereto and circumstances of either of

the parties in eking out their livelihood and under whose protective umbrella

they are seeking their sustenance to life. Generally, it is the wife’s

convenience which must be looked at by the Courts, while deciding a

transfer application.

The view taken by this Court also finds support from the

following judgments of the Hon’ble Supreme Court, as well as different

High Courts, including this Court: –

1. Mrs. Maneka Sanjay Gandhi and another Vs. Miss Rani
Jethmalani, AIR 1979 (SC) 468.

2. Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, 1990
(1) SCC 4.

3. Savitri Vs. Hari Chand, AIR 1999 SC 55

4. Neelam Kanwar Vs. Devinder Singh Kanwar, 2000 (10)
SCC 589.

5. Sumita Singh Vs. Kumar Sanjay and another, AIR 2002
(SC) 396.

6. Rachna Kanodia Vs. Anuk Kanodia, 2002 (1) MLJ 86

7. Archna Singh Vs. Alok Partap Singh, 2002 (2) MLJ 568

8. Mangla Patil Kale Vs. Sanjeev Kumar Kale, 2003 (10) SCC

280.

9. Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR
2009 (SC) 1773.

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10. Anjali Ashok Sadhwani Vs. Ashok Kishinchand
Sadhwani, AIR 2009 (SC) 1374.

11. Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs.
Kandi Friends Education Trust and others, AIR 2008 SC
1333.

12. Nisha Vs. Dharmenda Pratap Singh Rathore, 2015 (3) All.
LJ 168.

13. M.V. Rekha Vs. Sathya, 2011 (2) HLR 34.

14. Sneha Vs. Vinayak, 2013 ILR (Karnataka) 165.

15. Rimpal Vs. Balinder Kumar, 2010 (7) RCR (Civil) 286.

16. Anju Vs. Sanjay, 2011 (6) RCR (Civil) 112.

17. Komal Devi @ Komal Kumari @ Komal Rani Vs.
Harbhajan Singh, 2012 (8) RCR (Civil) 84.

The relevant observations made by the Hon’ble Supreme Court

in para 14 of its judgment in Kulwinder Kaur @ Kulwinder Gurcharan

Singh’s case (supra), which can be gainfully followed in the present case,

read as under: –

“Although the discretionary power of transfer of cases cannot
be imprisoned within a strait-jacket 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;

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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.”

Again, deliberating on an identical issue, in the case of

READ  Sanjay S/O Ranganathrao Garud-vs-The State Of Maharashtra Through on 7 March, 2008

Dr. Subramaniam Swamy (supra), the Hon’ble Supreme Court held as

under: –

“The question of expediency would depend on the facts and
circumstances of each case but the paramount consideration
for the exercise of power must be to meet the ends of justice. It
is true that if more than one court has jurisdiction under the
Code to try the suit, the plaintiff as dominus litis has a right to
choose the Court and the defendant cannot demand that the suit
be tried in any particular court convenient to him. The mere
convenience of the parties or any one of them may not be
enough for the exercise of power but it must also be shown that
trial in the chosen forum will result in denial of justice. Cases
are not unknown where a party seeking justice chooses a forum
most inconvenient to the adversary with a view to depriving
that party of a fair trial. The Parliament has, therefore,
invested this Court with the discretion to transfer the case from
one Court to another if that is considered expedient to meet the
ends of justice. Words of wide amplitude- for the ends of
justice- have been advisedly used to leave the matter to the

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discretion of the apex court as it is not possible to conceive of
all situations requiring or justifying the exercise of power. But
the paramount consideration must be to see that justice
according to law is done; if for achieving that objective the
transfer of the case is imperative, there should be no hesitation
to transfer the case even if it is likely to cause some
inconvenience to the plaintiff. The petitioner’s plea for the
transfer of the case must be tested on this touchstone.

(emphasis supplied)”

The above-said law laid down by the Hon’ble Supreme has also been

READ  Abhishek Keswari Alias Abhishek vs Unknown on 13 April, 2017

followed by this Court in order dated 16.03.2016 passed in TA No.945 of

2015 (Sushma and others Vs. Kapil @ Sahil Bansal) and TA No.797 of 2015

(Jagroop Kaur Vs.Varinder Singh Bhela @ Tony) which, in turn, were based

on the judgments of the Hon’ble Supreme Court, as well as different High

Courts, including this Court.

Reverting to the facts of the case in hand and respectfully

following the law laid down by the Hon’ble Supreme Court as well as

different High Courts, including this Court, it is unhesitatingly held that

applicant-wife is entitled for getting the petition under Section 25 of the Act

transferred from Kapurthala to Ludhiana, so as to enable her to pursue the

litigation without facing any undue hardship or harassment at the hands of

the respondent-husband. It is the settled principle of law that justice is not

only to be done but it should also appear to have been done. If the applicant

wife is forced to go from Ludhiana to Kapurthala, it would amount to denial

of justice to her. Thus, to strike a balance between the parties with a view to

do complete and substantial justice and proceeding on a holistic view of the

matter, this Court is of the considered view that it would be just and

expedient to transfer the petition under Section 25 of the Act from
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Kapurthala to Ludhiana.

No other argument was raised.

Considering the peculiar facts and circumstances of the case

noted above, coupled with the reasons aforementioned, this Court is of the

considered view that instant transfer application deserves to be accepted and

the same is hereby allowed. Petition under Section 25 of the Act filed by the

respondent husband is ordered to be transferred from Kapurthala to

Ludhiana.

Accordingly, the learned District Judge, Kapurthala, is directed

to send complete record of the above-said petition to the learned District

Judge, Ludhiana, at an early date but in any case within a period of one

month from the date of receipt of certified copy of this order.

The learned District Judge, Ludhiana, is also directed to assign

the case to the learned court of competent jurisdiction, for an early decision,

in accordance with law.

Parties through their counsel are directed to appear before the

learned court at Ludhiana, on 29.5.2017.

With the above-said observations made and directions issued,

present transfer application stands disposed of, however, with no order as to

costs.

27.4.2017 (RAMESHWAR SINGH MALIK)
AK Sharma JUDGE

Whether Speaking/reasoned : Yes/No
Whether Reportable : Yes/No

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