Cmpmo No. 12/2017 vs Bhim Sain on 11 July, 2017

HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO Nos. 12 50 of 2017

Date of decision: 11th July, 2017

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1. CMPMO No. 12/2017

Anisha Petitioner.
Versus

Bhim Sain Respondent

2. CMPMO No. 12/2017

Anisha Petitioner.
Versus

Bhim Sain r Respondent

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Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting1 : No.

For the petitioner: Mr. G.R. Palsra, Advocate.

For respondent: Mr. Naresh K. Gupta, Advocate.

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Tarlok Singh Chauhan, Judge (Oral)

Since common questions of law and facts arise for

consideration in these petitions, therefore, they were taken up together for

hearing and are being disposed of a by a common judgment.

2. These petition under Article 227 of the Constitution of India

read with Sections 24 and 151 of the Code of Civil Procedure have been

preferred by the petitioner-wife seeking transfer of proceedings initiated
1
Whether Reporters of local newspaper are permitted to see the judgment ?

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by the respondent-husband under Section 9 of the Hindu Marriage

Act,1955 ( case No. 6/2016, titled as Bhim Sain vs. Anisha) and under

Section 25 of the Guardians and Wards Act, 1890 (case No. 2-2/2016,

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titled as Bhim Sain vs. Anisha) from the court of learned Civil Judge

(Senior Division), Rampur Bushahr, District Shimla to the court of learned

Additional Chief Judicial Magistrate, Court No.1, Mandi.

3. Undisputed facts are that the parties are husband and wife

and on account of matrimonial discord, the petitioner has initiated

proceedings under Section 125 Cr. P.C. and under Section 12 of the

Protection of Women from Domestic Violence Act, 2005 against the

respondent, which are pending adjudication before the court of learned

Additional Chief Judicial Magistrate, Court No.1, Mandi and learned

Judicial Magistrate, 1st Class, Court No.4 Mandi respectively, whereas the

respondent has filed the petitions under Section 9 of the Hindu Marriage

Act,1955 and under Section 25 of the Guardians and Wards Act, 1890,

which are pending adjudication before the learned Civil Judge (Senior

Division), Rampur Bushahr. The petitioner has filed the instant petitions

for transfer on the ground that she has no independent source of income

because she does not own or possess any movable or immovable property.

It is also averred that it would not be possible for the petitioner to visit the

Court at Rampur Bushahr at her expenses as she has a minor daughter to

look after and maintain, whereas no inconvenience would be caused to the

respondent as he is a man of means and is getting handsome salary.

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4. I have heard learned counsel for the parties and have also

gone through the record carefully.

5. The learned counsel for the petitioner while seeking transfer

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of the aforesaid cases has relied upon a judgment rendered by me in

Urvashi Rana vs. Himanshu Nayyar, Latest HLJ 2016 (HP) 925, whereas

the learned counsel for the respondent has argued that the Hon’ble

Supreme Court in Krishna Veni Nagam vs. Harish Nagam (2017) 4 SCC

150, has stressed upon the use of modern technology especially video

conferencing.

6. Incidentally, both the aforesaid judgments were cited before

me in CMPMO No. 11/2016, titled as Rachna vs. Prashant Sharma,

decided on 21.6.2017, wherein it was held as under:-

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

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

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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

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having a minor child and it was difficult for her to attend the

Court at Palamu, Daltonganj, which was in the State of
Jharkhand and at a quite distance from
Patna where she was now residing with her child. Taking into
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
proceedings at Jabalpur as she is living at Hyderabad. The
marriage took place at Hyderabad. The petitioner has to look
after 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

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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

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

remedy the 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.”

[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

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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. Rakesh Kumar Sharma, 2008 11 SCC 768; and Anju

Ohri v. Varinder Ohri, 2007 15 SCC 556.]

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

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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
email 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
proceedings on account of inability of a party to contest

proceedings at a place away from their ordinary residence on the
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.

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

7. Noticeably, the facts in the instant cases are no different from

the one in Rachna’s case (supra) and therefore, following the dicta as laid

down in Rachna’s case, both the petitions are allowed and the proceedings

initiated by the respondent under Section 9 of the Hindu Marriage

Act,1955 ( case No. 6/2016, titled as Bhim Sain vs. Anisha) and under

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section 25 the Guardians and Wards Act,1890 (case No. 2-2/2016, titled as

Bhim Sain vs. Anisha) pending adjudication before the court of learned

Civil Judge (Senior Division), Rampur Bushahr, District Shimla are

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ordered to be transferred to the court of learned Additional chief Judicial

Magistrate, Court No.1, Mandi.

8. The parties through their respective counsel shall appear

before the Court of learned Additional Chief Judicial Magistrate, Court

No.1, Mandi on 26.7.2017. Since it is a matrimonial dispute, the said Court

is expected to decide the aforesaid case(s) as expeditiously as possible and

in no event later than 31.12.2017.

9. The petitions stand disposed of in the aforesaid terms leaving

the parties to bear their own costs. Pending application(s), if any also

stands disposed of.

(Tarlok Singh Chauhan)
th
11 July, 2017 Judge
(pankaj)

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