Mrs. Rachna vs Prashant Sharma on 21 June, 2017

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HIGH COURT OF HIMACHAL PRADESH, SHIMLA

C.M.P.M.O. No. 11 of 2016

.

Date of decision: 21st June, 2017

Mrs. Rachna Petitioner

Versus

Prashant Sharma Respondent

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge

Whether approved for reporting1 :

For the Petitioner : Mr. Y. Paul, Advocate

For the Respondent: Mr. Neeraj K. Sharma, Advocate.

Tarlok Singh Chauhan, J.

This petition under Article 227 of the Constitution of

India, read with Section 24 of the Code of Civil Procedure has been

preferred on behalf of the wife seeking transfer of proceedings

initiated by the respondent under Section 26 of the Hindu Marriage

Act, 1955 (No. 25 of 1955) { in short the Act}, from the Court of

learned Additional District Judge, Shimla to the Court of learned

District Judge, Mandi.

2. Undisputed facts are that the marriage between the parties

was solemnized on 10.04.2007 in accordance with Hindu Rites and

out of the wedlock a son, Master Adityam was born on 9th April,

2008 and is presently living under the care and custody of the

1
Whether Reporters of local newspaper are permitted to see the judgment ?

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petitioner since 10th April, 2012 at Mandi. On account of a

matrimonial discord, the petitioner filed a divorce petition under

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Section 13 of the Act, which is pending adjudication before the

learned District Judge, Mandi.

3. The respondent, on the other hand, thereafter initiated

proceedings for custody of the child by invoking jurisdiction of the

learned District Judge, Shimla by filing an application under Section

29 of the Act. It is these proceedings, which are now sought to be

transferred from the Court of Additional District Judge, Shimla to the

Court of District Judge, Mandi.

I have heard learned counsel for the parties and perused

the record.

4. The petitioner has vehemently contended that in

matrimonial proceedings and other such like proceedings, which are

the outcome of matrimonial discord, it is the convenience of the wife,

which has to be looked at and not the inconvenience of the husband.

In support of such submission, strong reliance is placed upon a

judgment rendered by me in Urvashi Rana Vs. Himanshu Nayyar

Latest HLJ 2016(HP) 925, (CMPMO 177 of 2016, dated

15.07.2016) wherein it was held as under:-

5. Mr. Rakesh Kumar Thakur, learned counsel for the petitioner,
has strenuously argued that in matrimonial proceedings and other
like proceedings which are the outcome of matrimonial discord, it
is the convenience of the wife which has to be looked at. In
support of his contentions, strong reliance has been placed upon

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the judgments of the Hon’ble Supreme Court in Sumita Singh
versus Kumar Sanjay and another (2001) 10 SCC 41, Soma

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Choudhury versus Gourab Choudhaury (2004) 13 SCC 462,

Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi (2005) 12
SCC 237, Kulwinder Kaur alias Kulwinder Gurcharan Singh

versus Kandi Friends Education Trust and others (2008) 3 SCC
659, Arti Rani alias Pinki Devi and another versus Dharmendra
Kumar Gupta (2008) 9 SCC 353 and Anjali Ashok Sadhwani

versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374.

6. In Sumita Singh versus Kumar Sanjay and another (2001)

10 SCC 41, it was held by the Hon’ble Supreme Court that in a

case where the wife seeks transfer of the petition, then as against
husband’s convenience, it is the wife’s convenience which must
be looked at.

7. In Soma Choudhury versus Gourab Choudhaury (2004)
13 SCC 462, it was held by the Hon’ble Supreme Court that once

the wife alleges that she has no source of income whatsoever and
was entirely dependent upon his father, who was a retired

government servant, then it was the convenience of the wife

which was required to be looked into and not that of the husband,
who had pleaded a threat to his life. It was further observed that if
the respondent therein had any threat to his life, he could take
police help by making an appropriate application to this effect.

8. In Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi
(2005) 12 SCC 237, in a case seeking transfer of the case at the
instance of the wife, it was specifically held by the Hon’ble
Supreme Court that convenience of wife was the prime
consideration.

9. Similarly, while dealing with the application for transfer
of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan
Singh versus Kandi Friends Education Trust and others (2008) 3

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SCC 659, the Hon’ble Supreme Court after analyzing the
provisions of Sections 24 and 25 of the Code of Civil Procedure

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laid down certain broad parameters for transfer of cases and it

was held:-

“23. 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 the plaintiff or the
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 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.”

10. In Arti Rani alias Pinki Devi and another versus Dharmendra
Kumar Gupta (2008) 9 SCC 353, the Hon’ble Supreme Court
was dealing with a case where the wife had sought transfer of
proceedings on the ground that she was having a minor child and
it was difficult for her to attend the Court at Palamu, Daltonganj,

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which was in the State of Jharkhand and at a quite distance from
Patna where she was now residing with her child. Taking into

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consideration the convenience of the wife, the proceedings were

ordered to be transferred.

11. Similarly, in Anjali Ashok Sadhwani versus Ashok

Kishinchand Sadhwani AIR 2009 SC 1374, the wife had sought
transfer of the case to Bombay from Indore in Madhya Pradesh
on the ground of inconvenience as there was none in her family

to escort her to Indore and on this ground the proceedings were
ordered to be transferred.

12. From the conspectus of the aforesaid judgments the broad

consensus that emerges is that in dispute of the present kind
where the petitioner is residing at her parental house at Chamba
and, therefore, it is the convenience of the petitioner which is

required to be considered over and above the inconvenience of
the husband.”

5. Though the aforesaid judgment fully supports the

contention of the petitioner, however, this Court cannot ignore the

latest judgment of the Hon’ble Supreme Court on the subject, which

was delivered recently on 9th March, 2017 in case Krishna Veni

Nagam Vs. Harish Nagam (2017) 4 SCC 150, the relevant

observations whereof read thus:-

“[5] On 9th January, 2017 when the matter came-up for hearing,
the following order was passed:

“1. This petition is filed under Section 25 of the Code of Civil
Procedure seeking transfer of proceedings initiated by the
respondent under Section 13 of the Hindu Marriage Act at
Jabalpur. According to the petitioner, who is the wife of the
respondent, she will face acute hardship in contesting the

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proceedings at Jabalpur as she is living at Hyderabad. The
marriage took place at Hyderabad. The petitioner has to look after

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her minor daughter who is living with her.

2. Undoubtedly under Section 19 of the Hindu Marriage Act, the
petition of the present nature could be filed at the place where the

marriage is solemnized or the respondent, at the time of the
presentation of the petition, resides or where the parties to the
marriage last resided together or where the wife is residing on the

date of the presentation of the petition, in case she is the petitioner
or in certain situations (as stipulated in clause iv) where the

petitioner resides.

3. This Court is flooded with petitions of this nature and having
regard to the convenience of the wife transfer is normally
allowed. However, in the process the litigants have to travel to

this Court and spend on litigation.Question is whether this can be
avoided?

4. We are of the view that if orders are to be passed in every
individual petition, this causes great hardship to the litigants who

have to come to this Court. Moreover in this process, the

matrimonial matters which are required to be dealt with
expeditiously are delayed.

5. In these circumstances, we are prima facie of the view that we
need to consider whether we could pass a general order to the
effect that in case where husband files matrimonial proceedings at
place where wife does not reside, the court concerned should
entertain such petition only on the condition that the husband
makes appropriate deposit to bear the expenses of the wife as may
be determined by the Court. The Court may also pass orders from
time to time for further deposit to ensure that the wife is not
handicapped to defend the proceedings. In other cases, the
husband may take proceedings before the Court in whose

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jurisdiction the wife resides which may lessen inconvenience to
the parties and avoid delay. Any other option to remedy the

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situation can also be considered.

6. However, before passing a final order, we consider it necessary
to hear learned Attorney General who may depute some law

officer to assist this Court.

List the matter on 31st January, 2017.

We also request Mr. C.A. Sundaram, Senior Advocate to assist

this Court as amicus curiae. A set of papers may be furnished to
the amicus.” r
[6] Thus, the question is whether an order can be passed so as to

provide a better alternative to each individual being required to
move this Court.

[7] We have already noted that large number of transfer petitions

of the present nature are being filed in this Court and are being
mechanically allowed. Similar observation was made by this

Court more than 10 years ago in Anindita Das v. Srijit Das, 2006
9 SCC 197

” On an average at least 10 to 15 transfer petitions are on board

of each court on each admission day.” It has also been observed in
a number of cases that in absence of any male member being
available to accompany the wife who is party to matrimonial
proceedings to a different place, it may render it “expedient for
ends of justice” to transfer proceedings.[Mona Aresh Goel v.
Aresh Satya Goel, 2000 9 SCC 255; Lalita A. Ranga v. Ajay
Champalal Ranga, 2000 9 SCC 355; Deepa v, Anil Panicker,
2000 9 SCC 441; Archana Rastogi v. Rakesh Rastogi, 2000 10
SCC 350; Leena Mukherjee v. Rabi Shankar Mukherjee, 2002 10
SCC 480; Neelam Bhatia v. Satbir Singh Bhatia, 2004 13 SCC
436; Soma Choudhury v. Gourab Choudhaury, 2004 13 SCC 462;
Rajesh Rani v. Tej Pal, 2007 15 SCC 597; Vandana Sharma v.

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Rakesh Kumar Sharma, 2008 11 SCC 768; and Anju Ohri v.
Varinder Ohri, 2007 15 SCC 556.]

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[8] Of course in some cases, it was observed that instead of

proceedings being transferred, the husband should pay travel,
lodging and boarding expenses of the wife and/or person

accompanying for each hearing. Premlata Singh v. Rita Singh,
2005 12 SCC 277 This trend has also been followed in other
matrimonial disputes, including guardianship dispute, etc. Gana

Saraswathi v. H. Raghu Prasad, 2000 10 SCC 277
[9] The Spirit behind the orders of this Court in allowing the

transfer petitions filed by wives being almost mechanically

allowing is that they are not denied justice on account of their
inability to participate in proceedings instituted at a different
place on account of difficulty either on account of financial or

physical hardship. Our Constitutional scheme provides for
guaranteeing equal access to justice, power of the State to make

special provisions for women and children and duty to uphold the
dignity of women. Various steps have been taken in this direction.

[14] One cannot ignore the problem faced by a husband if

proceedings are transferred on account of genuine difficulties
faced by the wife. The husband may find it difficult to contest
proceedings at a place which is convenient to the wife. Thus,
transfer is not always a solution acceptable to both the parties. It
may be appropriate that available technology of video
conferencing is used where both the parties have equal difficulty
and there is no place which is convenient to both the parties. We
understand that in every district in the country video conferencing
is now available. In any case, wherever such facility is available,
it ought to be fully utilized and all the High Courts ought to issue
appropriate administrative instructions to regulate the use of video
conferencing for certain category of cases. Matrimonial cases

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where one of the parties resides outside court’s jurisdiction is one
of such categories. Wherever one or both the parties make a

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request for use of video conference, proceedings may be

conducted on video conferencing, obviating the needs of the party
to appear in person. In several cases, this Court has directed

recording of evidence by video conferencing.
[15] The other difficulty faced by the parties living beyond the
local jurisdiction of the court is ignorance about availability of

suitable legal services. Legal Aid Committee of every district
ought to make available selected panel of advocates whose

discipline and quality can be suitably regulated and who are ready

to provide legal aid at a specified fee. Such panels ought to be
notified on the websites of the District Legal Services
Authorities/State Legal Services Authorities/National Legal

Services Authority. This may enhance access to justice consistent
with Article 39A of the Constitution.

[16] The advancement of technology ought to be utilized also for
service on parties or receiving communication from the parties.

Every district court must have at least one e-mail ID.

Administrative instructions for directions can be issued to permit
the litigants to access the court, especially when litigant is located
outside the local jurisdiction of the Court. A designated
officer/manager of a district court may suitably respond to such e-
mail in the manner permitted as per the administrative
instructions. Similarly, a manager/ information officer in every
district court may be accessible on a notified telephone during
notified hours as per the instructions. These steps may, to some
extent, take care of the problems of the litigants. These
suggestions may need attention of the High Courts.
[17] We are thus of the view that it is necessary to issue certain
directions which may provide alternative to seeking transfer of

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proceedings on account of inability of a party to contest
proceedings at a place away from their ordinary residence on the

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ground that if proceedings are not transferred it will result in

denial of justice.

[18] We, therefore, direct that in matrimonial or custody matters

or in proceedings between parties to a marriage or arising out of
disputes between parties to a marriage, wherever the
defendants/respondents are located outside the jurisdiction of the

court, the court where proceedings are instituted, may examine
whether it is in the interest of justice to incorporate any

safeguards for ensuring that summoning of defendant/respondent

does not result in denial of justice. Order incorporating such
safeguards may be sent along with the summons.
The safeguards can be:-

i) Availability of video conferencing facility.

ii) ii) Availability of legal aid service.

iii) iii) Deposit of cost for travel, lodging and boarding in
terms of Order XXV CPC.

iv) iv) E-mail address/phone number, if any, at which litigant

from out station may communicate.

[19] We hope the above arrangement may, to an extent, reduce
hardship to the litigants as noted above in the Order of this Court
dated 9th January, 2017. However, in the present case since the
matter is pending in this Court for about three years, we are
satisfied that the prayer for transfer may be allowed. Accordingly,
we direct that proceedings in Case No.179A/2013 under Section
13 of the Act titled “Harish Nagam vs. Krishna Veni Nagam”
pending on the file of II Presiding Judge, Family Court, Jabalpur,
Madhya Pradesh shall stand transferred to the Family Court,
Hyderabad, Andhra Pradesh. If the parties seek mediation the
transferee court may explore the possibility of an amicable

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settlement through mediation. It will be open to the transferee
court to conduct the proceedings or record evidence of the

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witnesses who are unable to appear in court by way of video

conferencing. Records shall be sent by court where proceedings
are pending to the transferee court forthwith.”

6. Obviously, the judgment rendered by me in Urvashi

Rana’s case supra, will have now to be read and re-conciled with the

latest judgment of Hon’ble Supreme Court in
r Krishna Veni

Nagam’s case and, therefore, wherever there is availability of video

conference facility, the Courts will have to readily resort to the same

and no party would then have any right to insist upon transfer of the

case only on account of the party being a lady or merely on the

ground of inconvenience.

7. However, as regards the facts of the instant case, it would

be noticed that proceedings prior in point of time under Section 13 of

the Act are already pending before the learned District Judge, Mandi

and, therefore, the respondent has otherwise go to Mandi to attend

those proceedings. Therefore, much prejudice would not be caused to

the respondent in case the instant proceedings are also transferred to

Mandi.

8. Therefore, taking into account the peculiar facts and

circumstances of the instant case, the proceedings pending in the

Court of learned Additional District Judge, Shimla are transferred to

the Court of learned District Judge, Mandi. The parties, through their

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counsel, shall appear before the Court of learned District Judge,

Mandi on 3rd July, 2017. The said Court is expected to decide the case

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as expeditiously as possible and in no event later than 31st October,

2017.

9. The petition stands disposed of in the aforesaid terms, so

also the pending applications, if any.

21st June, 2017(K)
r to ( Tarlok Singh Chauhan ),
Judge

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