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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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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