Smt. Bimla Devi vs Sh. Daya Nand on 18 September, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 265 of 2017.

Date of decision : 18th September, 2017.

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Smt. Bimla Devi . …Petitioner
Versus
Sh. Daya Nand …..Respondent.

Coram

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

Whether approved for reporting? No

For the Petitioner : Mr. H.S. Rangra, Advocate.

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

Tarlok Singh Chauhan, Judge (Oral).

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 petitioner-wife seeking transfer of

the petition i.e. H.M.A. No. 55 of 2016 titled as Daya Nand vs.

Bimla Devi, from the Court of learned Additional District Judge-1,

Camp at Sunder Nagar, District Mandi, H.P. to the Court of

learned District Judge, Shimla, District Shimla, H.P.

2. Undisputed facts of the case are that the marriage

between the parties was solemnized on 21.11.1989 in accordance

with the Hindu Rites and out of the wedlock, a son was born, who

is now doing Engineering and is residing at Shimla.

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1
Whether reporters of Local Papers may be allowed to see the Judgment ? Yes

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3. It was also not in dispute that the petitioner has filed

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certain proceedings, which are pending adjudication in the Court

of learned Judicial Magistrate 1st Class, Karsog, District Mandi.

Whereas the respondent, on the other hand has initiated

proceedings under Section 13 of the Hindu Marriage Act, which

are pending adjudication in the Court of learned Additional District

Judge, Mandi,Camp at Sunder Nagar, District Mandi, H.P. and

has sought the transfer of these proceedings either to the Court of

learned District Judge, Shimla or to the Court of Additional

District Judge-1, Mandi, Camp at Karsog, District Mandi, H.P.

I have heard learned counsel for the parties and

perused the record.

3. 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 this Court in Urvashi Rana

vs. Himanshu Nayyar Latest HLJ 2016 (HP) 925, (CMPMO No.

177 of 2016, decided on 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

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wife which has to be looked at. In support of his contentions,

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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) 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.

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9. Similarly, while dealing with the application for

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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 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

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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.”

4. 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

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petitioner, who is the wife of the respondent, she will

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face acute hardship in contesting the proceedings at
Jabalpur as she is living 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 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

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the Court. The Court may also pass orders from

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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 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,

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2000 9 SCC 441; Archana Rastogi v. Rakesh

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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,

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transfer is not always a solution acceptable to both

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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 ases 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 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

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must have at least one email ID. Administrative

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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 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.

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ii) Availability of legal aid service.

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

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.”

5. Obviously, the judgment rendered by this Court in

Urvashi Rana’s case supra, will have 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

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

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merely on the ground of inconvenience.

6. However, as regards the facts of the instant case, it

would be noticed that the proceedings are already pending

adjudication before learned Judicial Magistrate at Karsog and,

therefore, the respondent otherwise has to go to Karsog to attend

those proceedings. Therefore, much prejudice would not be

caused to him in case the instant proceedings are also transferred

to Karsog, District Mandi.

7. Therefore, taking into account the peculiar facts and

circumstances of the instant case, the proceedings i. e. petition

H.M.A. No.55 of 2016 titled as Daya Nand vs. Bimla Devi pending

in the Court of learned Additional District Judge-I, Camp at

Sunder Nagar, District Mandi, H.P. are transferred to the Court of

learned Additional District Judge-I, Mandi, Camp at Karsog,

District Mandi, H.P. The parties, through their counsel, shall

appear before the Court of learned Additional District Judge-I,

Camp at Karsog, District Mandi, on 9th October, 2017. The said

Court is expected to decide the case as expeditiously as possible

and in no event later than 31st December, 2017.

8. The petition stands disposed of in the aforesaid terms,

so also the pending applications, if any.

Copy dasti.

September 18, 2017. (Tarlok Singh Chauhan)
(GR) Judge

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