Baljit Kaur vs Jaswinder Lal on 30 May, 2017

TA No.370 of 2017 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

Date of decision: 30.05.2017
1. TA No.370 of 2017

Baljit Kaur
… Applicant

Vs.
Jaswinder Lal
… Respondent
2. CRM-M No.15917 of 2017

Baljit Kaur
… Applicant

Vs.
Jaswinder Kumar
… Respondent
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present: Mr. Kapil Khanna, Advocate
for the applicant.

Mr. Balram Singh, Advocate
for the respondent.

*******

RAMESHWAR SINGH MALIK, J. (ORAL)

These two transfer applications are being disposed of, vide this

common order, as both these cases are between the same parties and are

arising out of matrimonial dispute.

Applicant-wife is seeking transfer of her petition under Section

13 of the Hindu Marriage Act, 1955 (‘the Act’ for short) titled as Baljit Kaur

Vs. Jaswinder Lal from Kapurthala to SBS Nagar (Nawanshahr). Similarly,

she is seeking transfer of petition under Section 125 of the Code of Criminal

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Procedure (‘Cr.P.C.’ for short) from Phagwara, District Kapurthala to SBS

Nagar (Nawanshahr).

Notice in TA No.370 of 2017 has been issued.

Notice in CRM-M No.15917 of 2017.

Mr. Balram Singh, Advocate accepts notice on behalf of the

respondent and waives service.

Heard learned counsel for the parties.

It has gone undisputed before this Court that the applicant-wife is

living with her parents at Nawanshahr. Since the applicant-wife is not

working, she is dependent on her parents. Respondent-husband is not paying

any amount of maintenance to the applicant-wife. Learned counsel for the

applicant submits that the divorce petition under Section 13 of the Act as well

as a petition under Section 125 Cr.P.C. were filed at Kapurthala and Phagwara

respectively, because of the advice tendered to her by the learned counsel at

Kapurthala.

In view of the abovesaid undisputed fact situation of the case, this

Court feels no hesitation to conclude that it is just and expedient to transfer the

petition under Section 13 of the Act filed at Kapurthala as well as petition

under Section 125 Cr.P.C. filed at Phagwara, District Kapurthala to SBS

Nagar (Nawanshahr). 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 SBS Nagar (Nawanshahr) to

Kapurthala to pursue both the abovesaid litigations. Convenience of the wife

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

dispute, is one of the relevant consideration. Further, distance between the two

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places, financial status of the wife, her source of income, her age as well as

her responsibility for bringing up the minor child, 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

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

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(SC) 1773.

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 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

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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 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 abovesaid law laid down by the Hon’ble Supreme has also

been 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 13 of the Act

filed at Kapurthala as well as petition under Section 125 Cr.P.C. filed at

Phagwara, District Kapurthala to SBS Nagar (Nawanshahr), so as to enable

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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 SBS Nagar (Nawanshahr) 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

13 of the Act filed at Kapurthala as well as petition under Section 125 Cr.P.C.

filed at Phagwara, District Kapurthala to SBS Nagar (Nawanshahr).

No other argument was raised.

Considering the peculiar facts and circumstances of the cases

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

considered view that both these transfer applications deserve to be accepted

and the same are hereby allowed. Petition under Section 13 of the Act titled as

Baljit Kaur Vs. Jaswinder Lal filed at Kapurthala as well as petition under

Section 125 Cr.P.C. titled as Baljit Kaur Vs. Jaswinder Kumar filed at

Phagwara, District Kapurthala are ordered to be transferred to SBS Nagar

(Nawanshahr).

Accordingly, the learned District Judge, Kapurthala is directed to

send complete record of both the abovesaid petitions to the learned District

Judge, SBS Nagar (Nawanshahr) 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, SBS Nagar (Nawanshahr) is also

directed either to decide the cases himself or assign it to the learned Court of

competent jurisdiction, for their early decision, in accordance with law.

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Parties through their counsel are directed to appear before the

learned Court at SBS Nagar (Nawanshahr) on 07.07.2017.

With the abovesaid observations made and directions issued, both

these transfer applications stand disposed of, however, with no order as to

costs.

[ RAMESHWAR SINGH MALIK ]
30.05.2017 JUDGE
vishnu

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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