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Nirupama Gupta vs Vishal Gupta on 4 March, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 595 of 2019
Date of Decision: 4.3.2020

.

Nirupama Gupta …..Petitioner

Versus

Vishal Gupta …..Respondent
Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1

For the Petitioner r : Mr. Inder Sharma, Advocate.

For the Respondent : Mr. Dinesh Bhanot, Advocate.

Sandeep Sharma, Judge (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 on behalf of the

petitioner for transfer of H.M. Petition No. 57/2019, titled as

Vishal Gupta versus Nirupama Gupta, pending in the

Court of learned Additional District and Sessions Judge,

Nalagarh, District Solan, H.P., to the Court of learned District

and Sessions Judge (Family Court) Shimla, District Shimla, H.P.

2. The marriage between the petitioner and the

respondent was solemnized on 30.4.2015 according to Hindu

rites and customs prevailing in the area, but fact remains that

1
Whether the reporters of the local papers may be allowed to see the judgment?

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2

they were unable to live together for long on account of

certain differences.

.

3. As per the averments contained in the petition,

respondent has filed petition under Section 13 of the Hindu

Marriage Act ( for shot the ‘Act’) in the Court of learned

Additional District Sessions Judge, Nalagarh , District Solan,

H.P., seeking therein dissolution of marriage. After having

received summons/ notices issued by learned Additional

District and Session Judge, Nalagarh in the aforesaid petition

having been filed by the respondent (husband), petitioner has

approached this Court in the instant proceedings, praying

therein to transfer the proceedings from the Court of learned

Additional District and Sessions Judge, Nalagarh, to the Court

of learned District and Sessions Judge (Family Court) Shimla,

H.P., on the grounds of inconvenience, insufficiency of means,

compulsive litigation and on the ground that the distance

between Shimla and Nalagarh is more than 100 KMs and it is

difficult for her to attend the Court at Nalagarh, District Solan,

H.P.

4. Having heard learned counsel representing the

parties and perused the material available on record, this

Court has no hesitation to conclude that in the matrimonial

proceedings and other like proceedings, which are the

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outcome of matrimonial discord, it is the convenience of the

wife which is required to be taken into consideration by the

.

Court while considering the prayer, if any, made for transfer of

the case.

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 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

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the Hon’ble Supreme Court 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

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

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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

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

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. It is quite apparent from the aforesaid exposition of law

that in dispute of the present kind where the petitioner is

compelled to reside at her parental house on account of

matrimonial dispute, it is convenience of the petitioner, which is

required to be considered over and above the inconvenience of the

husband.

12. In the case at hand, bare perusal of the averments

contained in the petition suggest that petitioner is now residing at

Nursing Hostel at IGMC,Shimla alongwith her minor daughter,who

is being looked after and taken care by her, due to which she

cannot travel long distance and as such, it is very difficult for her

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to put his appearance at Nalagarh, District Solan, H.P, in

connection with divorce petition having been filed by the

.

respondent.

13. In view of the aforesaid discussion, the present petition

is allowed and the H.M. Petition No. 57/2019, titled as Vishal

Gupta versus Nirupama Gupta, pending in the Court of learned

Additional District and Sessions Judge, Nalagarh, District Solan,

H.P., is ordered to be transferred to the Court of learned District

and Sessions Judge (Family Court) Shimla, District Shimla, H.P.,

forthwith.

14. The parties through their respective counsel(s) are

directed to appear before the learned District and Sessions

Judge(Family Court) Shimla, H.P. on 30.3.2020

The petition stands disposed of in the aforesaid terms,

so also pending application(s), if any.

(Sandeep Sharma),
Judge
4th March, 2020
(shankar)

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