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Balwinder Kaur vs Kulwinder Singh on 17 March, 2017

TA No.241 of 2016 1

HIGH COURT FOR THE STATES OF PUNJAB HARYANA AT
CHANDIGARH

TA No.241 of 2016
Date of decision:17.3.2017
Balwinder Kaur
…Applicant

Versus

Kulwinder Singh
…Respondent

CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present: Ms.Rajni Maurya, Advocate for
Mr.Naveen Batra, Advocate for the applicant.
None 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 , filed by respondent-husband from Fatehgarh Sahib to

Rupnagar.

Notice of motion was issued. Service on the respondent was

effected. Mr.Gursimran Singh, Advocate appeared on behalf of the

respondent on 9.8.2016, 20.9.2016 and 17.12.2016. But nobody came

present on behalf of the respondent on the last date of hearing. Similar is

the position today.

Learned counsel for the applicant submits that in compliance of

the previous order dated 16.2.2017, she has got instructions to say that

divorce petition is still pending before the learned trial Court at Fatehgarh

Sahib.

Heard learned counsel for the applicant.

It has gone undisputed between the parties that applicant-wife

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TA No.241 of 2016 2

is living with her parents at her parental village in District Rupnagar. Since

applicant-wife is not working, she is dependent on her parents. Respondent-

husband is not paying any amount of maintenance to the applicant-wife.

Other litigation between the parties, at the instance of the applicant-wife, are

also pending at Rupnagar.

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 Fatehgarh Sahib to

Rupnagar. 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 Rupnagar to Fatehgarh

Sahib, 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

antecedent to marriage and subsequent thereto and circumstances of either

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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.

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.

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TA No.241 of 2016 4

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 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:-

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TA No.241 of 2016 5

“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 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.

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TA No.241 of 2016 6

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 Fatehgarh Sahib to Rupnagar, 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 Rupnagar to Fatehgarh Sahib, 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 Fatehgarh Sahib to Rupnagar.

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

respondent husband is ordered to be transferred from Fatehgarh Sahib to

Rupnagar.

Accordingly, the learned District Judge, Fatehgarh Sahib, is

directed to send complete record of the above-said petition to the learned

District Judge, Rupnagar, 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, Rupnagar, is also directed either to

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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.

17.3.2017                        (RAMESHWAR SINGH MALIK)
mks                                     JUDGE

              Whether Speaking/reasoned        :     Yes/No
              Whether Reportable               :     Yes/No




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