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Rajni Bhatia @ Rajni Diwan vs Nitin Diwan on 27 March, 2019

TA-734-2018 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

TA-734-2018 (OM)
Date of decision: 27.03.2019

Rajni Bhatia @ Rajni Diwan
…Applicant
Versus

Nitin Diwan
…Respondent

CORAM: HON’BLE MR.JUSTICE H.S. MADAAN

Present: Ms. Benti Kaur, Advocate for
Mr. Kawaljyot Singh, Advocate for the applicant.

Mr. Vivek Sharma Vashisht, Advocate for the respondent.

****

H.S. MADAAN, J. (Oral)

By way of moving the present application, applicant Rajni

Bhatia @ Rajni Diwan wife of respondent Nitin Diwan, seeks transfer of

petition under Section 7 8 of the Guardians and Wards Act, 1890, filed

by her husband, the respondent against her having title ‘Nitin Diwan Vs.

Rajni Bhatia @ Rajni Diwan’ pending in the Court of Guardian Judge,

Ludhiana to the Court of competent jurisdiction at Jalandhar.

According to the applicant, she was married with the

respondent, however, the marriage ran into rough weather. The couple

was blessed with a son, namely, Master Tanmay Diwan, presently aged

about 03 years. The applicant was maltreated by the respondent/husband

and was compelled to leave the matrimonial home, however the later

retained custody of the minor son. According to the applicant, keeping in

view the tender age of the child, he requires care and protection of his

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TA-734-2018 -2-

mother, the applicant. The respondent has filed the petition in question

with respect to the custody and guardianship of minor son of the parties.

According to her, she being a young woman, having no source of income,

it is difficult for her to travel from Jalandhar to Ludhiana, to attend the

dates of hearing in the Court there, covering a distance of about 70 kms

on one side. Therefore, the present application be accepted.

Notice of the application was given to the respondent, who

has put in appearance and is contesting the application vehemently,

praying for its dismissal, contending that the applicant herself had left the

minor child in the matrimonial home while going to her parental house

and no ground is there to transfer the petition in question. Therefore, the

application be dismissed.

I have heard learned counsel for the parties besides going

through the record.

Learned counsel for the applicant in support of her

contentions has referred to judgment by a Co-ordinate Bench of this

Court delivered in CR-7257-2018 on 02.11.2018, in case titled Tejbir

Singh Vs. Baljit Kaur, to the effect that the custody of a minor child

would naturally lie with the mother and therefore, the deemed custody

would be with mother, even if, actual custody is with the father. Whereas,

learned counsel for the respondent has relied upon judgment titled Tarun

Bansal @ Sonny Vs. Neelam Rani, 2015(1) PLJ 696, by another Bench

of this Court, observing that as per Section 9(1) of Guardians and Wards

Act, 1890, petition for guardianship of minor child could be filed in

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Court having jurisdiction over the area where the minor ordinarily

resides.

After hearing the rival contentions and going through the

authorities referred to by learned counsel for the parties, I find that no

doubt the competent Court having jurisdiction over the area where the

minor actually resides has got the jurisdiction but other facts and

circumstances are also to be taken into consideration. According to the

applicant, she does not have any source of income. It is difficult for her to

travel from Jalandhar to Ludhiana to attend the dates of hearing in the

Court there.

The Apex Court in various judgments has observed that in

matrimonial disputes between the spouses convenience of wife should be

looked into. In that regard a reference can be made to authority Sumita

Singh Versus Kumar Sanjay and another, 2002 AIR(SC) 396 by a

Division Bench of Hon’ble Supreme Court.

In Bhartiben Ravibhai Rav Versus Ravibhai Govindbhai

Rav, 2017(3) RCR(Civil) 369, the Apex Court had allowed application

for transfer of the divorce petition to a place where the wife was residing

considering various factors including the distance between the place

where the wife was residing and the place of sitting of the Court where

divorce petition had been instituted and the fact that the wife had filed

two cases against her husband in the Court at the place of her residence

wherein the respondent had already put in appearance.

In Apurva Versus Navtej Singh, 2017(2) Law Herald 966

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by a Co-ordinate Bench of this Court, it was observed that wherever the

Courts are called upon to consider the plea of transfer in matrimonial

disputes, the Courts have to take into consideration various factors like

economic soundness of either of the parties, the social strata of the

spouses to which they belong and behavioural pattern, standard of life

antecedents of marriage. Generally it is the wife’s convenience, which

must be looked at by the Courts while deciding the transfer application.

Keeping in view the contentions in the application and

submissions made by learned counsel for the applicant, in which I find

merit, in absence of any strong circumstance to the contrary, it would be

proper and appropriate, if the application is accepted. The same is

accordingly allowed. The petition in question is ordered to be withdrawn

from the Court of Guardian Judge, Ludhiana and transferred to Family

Court at Jalandhar for disposal in accordance with law.

The parties through their counsel are directed to appear in

the transferee Court on 25.04.2019. Copies of orders be sent to both the

Courts for information and necessary compliance.

27.03.2019 (H.S. MADAAN)
sumit.k JUDGE

Whether speaking/reasoned : Yes No
Whether Reportable : Yes No

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