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Banita Devi (Vanita Devi) vs Ravi Kumar on 25 June, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

.

CMPMO No.216 of 2018.

Date of decision : 25.06.2018.

Banita Devi (Vanita Devi) . …Petitioner.

Versus
Ravi Kumar …..Respondent.

Coram

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

Whether approved for reporting? No

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

For the Respondent : Mr. Naveen K.Bhardwaj, Advocate.

Tarlok Singh Chauhan, Judge (Oral).

This petition under Section 24 of the Code of Civil

Procedure read with Article 227 of the Constitution of India has been

preferred on behalf of the petitioner-wife seeking transfer of the

petition i.e. HMP No.74 of 2017 titled as ‘Ravi Kumar versus Banita

Devi’ from the Court of learned Additional District Judge, Kullu,

District Kullu to the Court of learned District Judge, Mandi, District

Mandi, H.P.

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

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2

2. The facts of the case are that the marriage between the

.

parties was solemnized on 14.04.2015 in accordance with the Hindu

Rites and Ceremonies and one female child was born on

29.04.2016. Thereafter, the petitioner was compelled to leave the

matrimonial house and, therefore, had no other alternative but to

live in the house of her parents.

3. It is not in dispute that the petitioner has already filed an

application under Section 125 Cr.P.C. against the respondent for

grant of maintenance allowance which is pending before Judicial

Magistrate 1st Class, Court No.3, Mandi. It is averred that the

respondent filed a divorce petition against the petitioner that too in

the Court of learned Additional District Judge, Kullu, which is now

fixed on 02.07.2018, malafidely and knowing fully well that because

of the circumstances the petitioner would be unable to attend the

Court at Kullu. It is further averred that this case is nothing, but a

counter-blast to the application filed by her under Section 125

Cr.P.C. It is also averred that insofar as the respondent is

concerned, he is a man of means having sufficient movable and

immovable property, whereas, the petitioner has no means of

livelihood because she has no movable or immovable property in

her name. Therefore, she is unable to defend the divorce petition

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effectively at Kullu. Moreover, she has a little child to look after and it

.

is extremely difficult to her to attend the Court at Kullu in absence of

any male member escorting her.

I have heard learned counsel for the parties and

perused the record.

4. The law with regard to transfer of such like proceedings

is well settled that as against the inconvenience of the husband, it is

the convenience of the wife and the children that is required to be

taken into consideration while allowing or declining the prayer for

transfer.

5. 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.

6. 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

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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.

7. 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 Courtr that convenience of wife was the prime

consideration.

8. Similarly, while dealing with the application for 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

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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.”

9. 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 sought

transfer of proceedings on the ground that she was 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.

10. Similarly, in Anjali Ashok Sadhwani versus Ashok

Kishinchand Sadhwani AIR 2009 SC 1374, the wife had sought

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transfer of the case to Bombay from Indore in Madhya Pradesh on

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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.

11. 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 Mandi, it is

her convenience that is required to be considered over and above

the inconvenience of the husband.

12. Accordingly, the present petition is allowed. The

proceedings in HMP No.74 of 2017 titled as ‘Ravi Kumar versus

Banita Devi’ pending adjudication before learned Additional District

Judge, Kullu, District Kullu, are ordered to be transferred to the

Court of learned District Judge, Mandi, District Mandi, H.P.

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

so also the pending applications, if any.

25th June, 2018. (Tarlok Singh Chauhan)
(krt) Judge

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