TA No. 868 of 2016 1
HIGH COURT FOR THE STATES OF PUNJAB HARYANA
AT CHANDIGARH
TA No. 868 of 2016
Date of decision: 15.3.2017
Armeen
…Applicant
Versus
Mohan Deep Singh
…Respondent
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Rajan Bansal, Advocate
for the applicant.
Mr. Mohandeep, Advocate
for the respondent.
RAMESHWAR SINGH MALIK, J. (Oral)
Applicant, by way of instant transfer application under Section
24 of the Code of Civil Procedure (for short ‘CPC’), seeks transfer of the
petition under Section 13 (i) (a) 13 (i) (b) of the Hindu Marriage Act,
1955 (‘the Act’ for short) titled as Mohan Deep Singh Vs. Armeen, filed by
respondent husband from Fatehabad to Bathinda.
Notice of motion was issued and learned trial court was directed
to adjourn the case beyond the date fixed before this Court.
Heard learned counsel for the parties.
It has gone undisputed between the parties that the applicant-
wife is staying with her widowed mother at Bathinda. Respondent-husband
is not paying any amount of maintenance to the applicant. Since applicant-
wife is not having any regular source of income, she is dependent on her
mother. Distance between Fatehabad and Bathinda is more than 100 Kms.
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Other litigation between the parties, at the instance of the applicant-wife, are
also pending at Bathinda.
The only contention raised by learned counsel for the
respondent-husband that instead of transferring the divorce petition from
Fatehabad to Bathinda, it may be transferred to Mansa, has been duly
considered but not found worth acceptance.
After giving anxious consideration to the contentions raised and
careful perusal of the record of the case, this Court is of the considered
opinion that instant one has been found to be a fit case for ordering the
transfer of petition under Section 13 (i) (a) 13 (i) (b) of the Act from
Fatehabad to Bathinda. 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 Bathinda to
Fatehabad, to pursue the litigation imposed on her by the respondent-
husband. Convenience of the wife in transfer applications, like the present
one, arising out of a matrimonial dispute, is one of the relevant
considerations. Further, distance between the two places, financial status of
the wife, her source of income, as well as her age 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
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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. Neelam Kanwar Vs. Devinder Singh Kanwar, 2000 (10)
SCC 589.
4. Sumita Singh Vs. Kumar Sanjay and another, AIR 2002
(SC) 396.
5. Mangla Patil Kale Vs. Sanjeev Kumar Kale, 2003 (10) SCC
280.
6. Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR
2009 (SC) 1773.
7. Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani,
AIR 2009 (SC) 1374.
8. Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi
Friends Education Trust and others, AIR 2008 SC 1333.
9. Nisha Vs. Dharmenda Pratap Singh Rathore, 2015 (3) All.
LJ 168.
10. M.V. Rekha Vs. Sathya, 2011 (2) HLR 34.
11. Sneha Vs. Vinayak, 2013 ILR (Karnataka) 165.
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12. Rimpal Vs. Balinder Kumar, 2010 (7) RCR (Civil) 286.
13. Anju Vs. Sanjay, 2011 (6) RCR (Civil) 112.
14. 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;
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 from4 of 7
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TA No. 868 of 2016 5which 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 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 above-said law laid down by the Hon’ble Supreme has also been
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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 (i) (a)
13 (i) (b) of the Act transferred from Fatehabad to Bathinda, so as to enable
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 Bathinda to Fatehabad, 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 (i) (a)
13 (i) (b) of the Act from Fatehabad to Bathinda.
No other argument was raised.
Considering the peculiar facts and circumstances of the case
noted above, coupled with the reasons aforementioned, this Court is of the
considered view that instant transfer application deserves to be accepted and
the same is hereby allowed. Petition under Section 13 of the HM Act filed
by the respondent husband is ordered to be transferred from Fatehabad to
Bathinda.
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Accordingly, the learned District Judge, Fatehabad, is directed
to send complete record of the above-said petition to the learned District
Judge, Bathinda, 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, Bathinda, is also directed either to
decide the case himself or assign it to the learned court of competent
jurisdiction, for an early decision, in accordance with law.
With the above-said observations made and directions issued,
present transfer application stands disposed of, however, with no order as to
costs.
15.3.2017 (RAMESHWAR SINGH MALIK)
AK Sharma JUDGE
Whether Speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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