TA No.372 of 2017 1
HIGH COURT FOR THE STATES OF PUNJAB HARYANA AT
CHANDIGARH
TA No.372 of 2017
Date of decision:1.6.2017
Arwinder Kaur
…Applicant
Versus
Sushil Kumar
…Respondent
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.Raj Paul Kansal, Advocate for the applicant.
Mr.Surinder Garg, 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 of the Hindu Marriage Act, 1955 (‘the Act’ for
short) titled as Sushil Kumar Vs. Arwinder Kaur, filed by respondent-
husband from Sangrur to Ludhiana.
Notice of motion was issued and in the meantime, learned court
below was directed to adjourn the matter beyond the date fixed before this
Court. Reply filed on behalf of the respondent in the Court today is taken
on record and copy thereof has been supplied to the counsel opposite.
Heard learned counsel for the parties.
It has gone undisputed between the parties that applicant-wife
is living with her parents at District Ludhiana. Since applicant-wife is not
working, she is dependent on her parents. Respondent-husband is not
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paying any amount of maintenance to the applicant-wife. Distance between
Sangrur and Ludhiana is about 100 Kms.
Learned counsel for the respondent-husband has vehemently
opposed the present transfer application, contending that applicant-wife is
not entitled for getting the divorce petition transferred. The contention
raised by the learned counsel for the respondent-husband has been duly
considered but found wholly misplaced and not 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 of the Act from Sangrur to Ludhiana. 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 Ludhiana to Sangrur, 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
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take into consideration the economic soundness of either of the parties, the
social strata of the spouses and behavioural pattern, their standard of life
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. Savitri Vs. Hari Chand, AIR 1999 SC 55
4. Neelam Kanwar Vs. Devinder Singh Kanwar, 2000 (10)
SCC 589.
5. Sumita Singh Vs. Kumar Sanjay and another, AIR 2002
(SC) 396.
6. Rachna Kanodia Vs. Anuk Kanodia, 2002 (1) MLJ 86
7. Archna Singh Vs. Alok Partap Singh, 2002 (2) MLJ 568
8. Mangla Patil Kale Vs. Sanjeev Kumar Kale, 2003 (10) SCC
280.
9. Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR
2009 (SC) 1773.
10. Anjali Ashok Sadhwani Vs. Ashok Kishinchand
Sadhwani, AIR 2009 (SC) 1374.
11. Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs.
Kandi Friends Education Trust and others, AIR 2008 SC
1333.
12. Nisha Vs. Dharmenda Pratap Singh Rathore, 2015 (3)
All. LJ 168.
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13. M.V. Rekha Vs. Sathya, 2011 (2) HLR 34.
14. Sneha Vs. Vinayak, 2013 ILR (Karnataka) 165.
15. Rimpal Vs. Balinder Kumar, 2010 (7) RCR (Civil) 286.
16. Anju Vs. Sanjay, 2011 (6) RCR (Civil) 112.
17. 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 the4 of 7
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TA No.372 of 2017 5above 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.”
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)
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The above-said law laid down by the Hon’ble Supreme has also
been 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 of the Act
transferred from Sangrur to Ludhiana, 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 Ludhiana to Sangrur, 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 of the Act from Sangrur
to Ludhiana.
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 Act filed by the
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respondent husband is ordered to be transferred from Sangrur to Ludhiana.
Accordingly, the learned District Judge, Sangrur, is directed to
send complete record of the above-said petition to the learned District
Judge, Ludhiana, 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, Ludhiana, 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.
Parties through their counsel are directed to appear before the
learned court at Ludhiana, on 5.7.2017.
With the above-said observations made and directions issued,
present transfer application stands disposed of, however, with no order as to
costs.
1.6.2017 (RAMESHWAR SINGH MALIK)
mks JUDGE
Whether Speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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