Smt. Anchal vs Sh. Raman Kumar on 13 October, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 233 of 2017
Decided on: October 9, 2017
_

.
Smt. Anchal ………Petitioner

Versus
Sh. Raman Kumar …Respondent
_
Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
_
For the petitioner: Mr. H.S. Rangra, Advocate.

For the respondent: None.
_
Sandeep Sharma, J. (Oral)

By way of instant petition filed under Article 227 of the

Constitution of India, read with Section 24 of the Code of Civil

Procedure, prayer has been made to transfer HMP No. 69/2017

titled as Raman Kumar versus Smt. Anchal from the Court of

learned Additional District Judge-I, Kangra at Dharamshala, District

Kangra to the Court of learned District Judge, Chamba, District

Chamba, Himachal Pradesh.

2. Before considering the aforesaid prayer having been made

by the petitioner by way of instant petition, it may be noticed that

this Court, taking note of averments contained in the petition,

issued notice to the respondent on 29.5.2017, returnable on

20.6.2017. However, the fact remains that respondent, who was

served through his mother, failed to put in appearance on

Whether reporters of the Local papers are allowed to see the judgment? .

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24.7.2017, but at that point of time, this Court instead of proceeding

in the matter ex parte, issued court notice returnable for 28.8.2017.

Even on 28.8.2017, respondent failed to put in appearance but this

.

Court, taking note of the nature of litigation pending before this

Court, issued fresh court notice to the respondent specifically

intimating therein that in case he fails to put in appearance on the

next date of hearing, case shall be decided on material available on

record, in his absence.

3. Today, i.e. 9.10.2017, respondent has not come present

despite having received court order. As per report submitted by the

process server notice issued by this Court was duly served upon the

respondent, but despite that he chose not to come present before

this Court, as such, this Court has no other option but to decide the

present case on the basis of pleadings adduced on record by the

petitioner as well as law on the point.

4. Facts, as emerge from the record are that marriage of the

petitioner was solemnized on 2.8.2013 at Mohala Uper Dharang,

Tehsil and District Chamba, Himachal Pradesh, as per Hindu rites,

customs and ceremonies. Parties resided together as husband and

wife till September 2014 and one male child namely Rudu Sharma

born out of their wedlock. Perusal of record further suggests that

relations between parties remained cordial for one year and

thereafter petitioner left the matrimonial house without informing

the respondent or his family members. Since petitioner failed to join

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the company of the respondent despite his requests, as such,

respondent preferred a petition under Section 13(1)(ia)(ib) of the

Hindu Marriage Act, 1955, with a prayer to dissolve the marriage

.

between the parties, by a decree of divorce, in the Court of District

Judge, Kangra at Dharamshala. In the aforesaid petition,

respondent alleged that the petitioner left the matrimonial house of

the respondent without any reason and has not been residing with

him for more than two years and also not performing her conjugal

duties being legally wedded wife of respondent and therefore, a

decree for dissolution of marriage be granted/passed.

5. As per the petitioner, petition having been preferred by the

respondent is at initial stage as the same was fixed for service of the

petitioner on 23.3.2017 , whereafter, same was listed for reply of

petitioner in the month of June, 2017. At this stage, learned counsel

representing the petitioner stated that service in the case is complete

and same is fixed for reply, if any, to the petition. As per the

petitioner, she as well as learned Court below repeatedly made

attempts to reconcile the matter between the parties but respondent

is not ready and willing even to appear in the reconciliation meeting,

as fixed by learned Court below, as such, she is finding it difficult to

attend the proceedings at Dharamshala, which is more than 100

kms away from her place of residence i.e. Chamba. She has further

stated that she is having minor child aged 3 years, who is under the

care and custody of the petitioner and it is very difficult for her to

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attend the Court at Dharamshala on each and every hearing, as

such, it would be in the interest of justice, if proceedings initiated at

the behest of the respondent under Hindu Marriage Act, are

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transferred to the Court of learned District Judge, Chamba.

Petitioner has further stated that at present she is living with her

mother in her parental house, since father of the petitioner has

expired and there is nobody to support her widowed mother and it is

not possible for her to leave her minor son aged 3 years, back at

Chamba, to attend Court at Dharamshala.

6. Apart from above, petitioner has also claimed that she is

unable to spend huge amount so as to attend the Court at

Dharamshala and to pay fee to the Counsel at Dharamshala. It is

further alleged that since respondent is local resident of District

Kangra, as and when she visits Dharamshala to attend the Court for

hearing, she suffers humiliation and harassment as other persons

accompanying the respondent comment upon her conduct.

7. With the aforesaid submissions, which have been further

canvassed by Mr. H.S. Rangra, learned counsel representing the

petitioner during arguments, prayer has been made on behalf of the

petitioner to transfer the petition pending before learned Additional

District Judge-I, Dharamshala to the Court of learned District

Judge, Chamba.

8. Mr. H.S. Rangra, learned counsel representing the

petitioner, in support of his aforesaid contentions also placed

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reliance upon the judgment rendered by this Court in Urvashi Rana

versus Himanshu Nayyar, (CMPMO No. 177 of 2016) decided on

15.7.2016, reported in Latest HLJ 2016(HP) 925, to demonstrate

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that convenience of wife is required to be considered over and above

the inconvenience of the husband.

9. Aforesaid judgment passed by this Court is based upon law

laid down by the Hon’ble Apex Court in various cases, wherein it has

observed that wife’s convenience is required to be considered over

and above the inconvenience of the husband.

10. In Rajani Kishor Pardeshi versus Kishor Babulal

Pardeshi, (2005) 12 SCC 237, Hon’ble Apex Court has held that

convenience of wife is of prime consideration.

11. Similarly, Hon’ble Apex Court in Kulwinder Kaur alias

Kulwinder Gurcharan Singh versus Kandi Friends Education

Trust and others, (2008) 3 SCC 659, has laid down parameters for

transferring the cases i.e. 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 proceedings, etc.

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While laying aforesaid broad parameters, Hon’ble Apex Court has

further held that these are illustrative in nature and by no means

can be taken to be 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. The Hon’ble Apex Court has held as under:

“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.”

12. Similarly, Hon’ble Apex Court in Arti Rani alias Pinki Devi

and another versus Dharmendra Kumar Gupta, (2008) 9 SCC 353,

while dealing with a petition preferred by wife for transfer of

proceedings on the ground that she was having 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, ordered transfer

of proceedings taking into consideration convenience of wife.

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13. In the case at hand, facts, as have been discussed above,

which have not been refuted, it clearly emerges that at present,

petitioner resides at Chamba, which is definitely more than 100 kms

.

away from Dharamshala i.e. Court, where respondent-husband has

filed petition for divorce. Similarly, there appears to be no dispute

with regard to petitioner having minor child aged three years and it

can be presumed that it is difficult for the petitioner to attend each

and every hearing at Dharamshala, leaving her minor child at

Chamba.

14. Leaving everything aside, this Court can not lose sight of

the fact that petitioner is unnecessarily being made to spend huge

sum of money on transportation, as she being respondent in the

petition in the court below initiated at the behest of respondent

(husband) at Dharamshala, is always under obligation to attend the

Court at Dharamshala.

15. During proceedings of the case, attention of this Court was

invited to the judgment passed by Hon’ble Apex Court in Krishna

Veni Nagam versus Harish Nagam, (2017) 4 SCC 150, wherein

Hon’ble Apex Court has held as under:

“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. 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

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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.

xxxx
xxxx

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) Availability of legal aid service.

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.”

16. Recently, the Hon’ble Apex Court in Transfer Petition (Civil)

No. 1278 of 2016, titled Santhini versus Vijaya Venketesh, has

overruled the judgment passed in Krishna Veni Nagam versus

Harish Nagam, (2017) 4 SCC 150 (Supra). Relevant paras of

aforesaid latest judgment are reproduced below:

“51. In this context, we may refer to the fundamental principle of
necessity of doing justice and trial in camera. The nine-Judge
Bench in
Naresh Shridhar Mirajkar and Ors v. State of
Maharashtra and Anr.46, after enunciating the universally
accepted proposition in favour of open trials, expressed:-

“While emphasising the importance of public trial, we
cannot overlook the fact that the primary function of the

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Judiciary is to do justice between the parties who bring
their causes before it. If a Judge trying a cause is satisfied
that the very purpose of finding truth in the case would be
retarded, or even defeated if witnesses are required to give
evidence subject to public gaze, is it or is it not open to
him in exercise of his inherent power to hold the trial in

.

camera either partly or fully? If the primary function of the

court is to do justice in causes brought before it, then on
principle, it is difficult to accede to the proposition that
there can be no exception to the rule that all causes must

be tried in open court. If the principle that all trials before
courts must be held in public was treated as inflexible and
universal and it is held that it admits of no exceptions
whatever, cases may arise where by following the
principle, justice itself may be defeated. That is why we
feel no hesitation in holding that the High Court has

inherent jurisdiction to hold a trial in camera if the ends of
justice clearly and necessarily require the adoption of such
a course. It is hardly necessary to emphasise that this
inherent power must be exercised with great caution and

it is only if the court is satisfied beyond a doubt that the
ends of justice themselves would be defeated if a case is

tried in open court that it can pass an order to hold the
trial in camera; but to deny the existence of such inherent
power to the court would be to ignore the primary object of
adjudication itself. The principle underlying the insistence
on hearing causes in open court is to protect and assist

fair, impartial and objective administration of justice; but
if the requirement of justice itself sometimes dictates the
necessity of trying the case in camera, it cannot be said
that the said requirement should be sacrificed because of

the principle that every trial must be held in open court.”

52. The principle of exception that the larger Bench enunciated is

founded on the centripodal necessity of doing justice to the
cause and not to defeat it. In matrimonial disputes that are
covered under
Section 7 of the 1984 Act where the Family Court

exercises its jurisdiction, there is a statutory protection to both
the parties and conferment of power on the court with a duty to
persuade the parties to reconcile. If the proceedings are directed
to be conducted through videoconferencing, the command of the
Section as well as the spirit of the 1984 Act will be in peril and
further the cause of justice would be defeated.

53. A cogent reflection is also needed as regards the perception when
both the parties concur to have the proceedings to be held
through videoconferencing. In this context, the thought and the
perception are to be viewed through the lens of the textual
context, legislative intent and schematic canvas. The principle
may had to be tested on the bedrock that courts must have
progressive outlook and broader interpretation with the existing
employed language in the statute so as to expand the horizon
and the connotative expanse and not adopt a pedantic approach.

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54. We have already discussed at length with regard to the
complexity and the sensitive nature of the controversies. The
statement of law made in Krishna Veni Nagam (supra) that if
either of the parties gives consent, the case can be transferred, is
absolutely unacceptable. However, an exception can be carved
out to the same. We may repeat at the cost of repetition that

.

though the principle does not flow from statutory silence, yet as

we find from the scheme of the Act, the Family Court has been
given ample power to modulate its procedure.
The Evidence
Act is not strictly applicable. Affidavits of formal witnesses are

acceptable. It will be permissible for the other party to cross-
examine the deponent. We are absolutely conscious that the
enactment gives emphasis on speedy settlement. As has been
held in Bhuwan Mohan Singh (supra), the concept of speedy
settlement does not allow room for lingering the proceedings. A
genuine endeavour has to be made by the Family Court Judge,

but in the name of efforts to bring in a settlement or to arrive at
a solution of the lis, the Family Court should not be chained by
the tentacles by either parties. Perhaps, one of the parties may
be interested in procrastinating the litigation. Therefore, we are

disposed to think that once a settlement fails and if both the
parties give consent that a witness can be examined in video

conferencing, that can be allowed. That apart, when they give
consent that it is necessary in a specific factual matrix having
regard to the convenience of the parties, the Family Court may
allow the prayer for videoconferencing. That much of discretion,
we are inclined to think can be conferred on the Family Court.

Such a limited discretion will not run counter to the legislative
intention that permeates the 1984 Act. However, we would like to
add a safeguard. A joint application should be filed before the
Family Court Judge, who shall take a decision. However, we

make it clear that in a transfer petition, no direction can be
issued for video conferencing. We reiterate that the discretion

has to rest with the Family Court to be exercised after the court
arrives at a definite conclusion that the settlement is not
possible and both parties file a joint application or each party

filing his/her consent memorandum seeking hearing by
videoconferencing.

55. Be it noted, sometimes, transfer petitions are filed seeking
transfer of cases instituted under the Protection of Women
from
Domestic Violence Act, 2005 and cases registered under
the
IPC. As the cases under the said Act and the IPC have not
been adverted to in Krishna Veni Nagam (supra) or in the order
of reference in these cases, we do intend to advert to the same.

56. In view of the aforesaid analysis, we sum up our conclusion as
follows :-

(i) In view of the scheme of the 1984 Act and in
particular
Section 11, the hearing of matrimonial
disputes may have to be conducted in camera.

(ii) After the settlement fails and when a joint
application is filed or both the parties file their

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respective consent memorandum for hearing of the
case through videoconferencing before the
concerned Family Court, it may exercise the
discretion to allow the said prayer.

(iii) After the settlement fails, if the Family Court feels it
appropriate having regard to the facts and

.

circumstances of the case that videoconferencing

will sub-serve the cause of justice, it may so direct.

(iv) In a transfer petition, video conferencing cannot be
directed.

(v) Our directions shall apply prospectively.

(vi) The decision in Krishna Veni Nagam (supra) is
overruled to the aforesaid extent”

17. Accordingly, perusal of aforesaid judgment clearly suggests

that in a transfer petition, video conferencing cannot be directed and

hearing of matrimonial disputes is required to be conducted in

camera. In the aforesaid judgment, Hon’ble Apex Court has further

held that after the settlement fails and when a joint application is

filed or both the parties file their respective consent memorandum

for hearing of the case through videoconferencing before the

concerned Family Court, it may exercise the discretion to allow the

said prayer, but in transfer petition, video conferencing can not be

directed.

18. Though this Court, after having taking note of the aforesaid

grounds raised in the instant petition coupled with the law on the

point, as has been laid down by the Hon’ble Apex Court as well as

this Court, sees no impediment in transferring the proceedings

pending before learned Additional District Judge-I, Kangra at

Dharamshala to Chamba, but even otherwise, as has been informed

by the learned counsel representing the petitioner, another petition

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under Section 125 CrPC initiated at the behest of present petitioner

is also pending before the leaned Chief Judicial Magistrate Chamba

and in that case, respondent(husband) is already appearing. Since

.

petition under Section 125 CrPC is also pending at Chamba against

the present respondent and in that case he has been also appearing

before the Court concerned, no prejudice shall be caused to the

respondent, in case proceedings under Hindu Marriage Act, pending

at Dharamshala, are transferred to the Court at Chamba.

19. After having carefully considered the material available on

record, as well as submissions having been made by the learned

counsel representing the petitioner, and law laid down by the

Hon’ble Apex Court, this court deems it fit to transfer HMP No.

69/2017 titled as Raman Kumar versus Smt. Anchal from the Court

of learned Additional District Judge-I, Kangra at Dharamshala,

District Kangra to the Court of learned District Judge, Chamba,

District Chamba, Himachal Pradesh. Learned counsel for the

petitioner undertakes to cause appearance of the petitioner before

learned District Judge, Chamba on 10.11.2017, on which date,

learned District Judge, Chamba shall issue notice to the respondent,

to put in appearance on the date to be fixed by him/her. Learned

Additional District Judge-I, Kangra at Dharamshala shall transfer

the aforesaid petition to the Court of District Judge, Chamba,

forthwith, to enable learned District Judge, Chamba, to do the

needful, as ordered vide this judgment.

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20. Registry to send copy of instant judgment to the learned

Additional District Judge-I, Kangra at Dharamshala as well as

learned District Judge, Chamba, forthwith, to enable them to do the

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needful well within stipulated time.

21. In view of above, the present petition is disposed of,

alongwith pending applications, if any.

(Sandeep Sharma)
Judge
October 9, 2017
(Vikrant) r

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