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Shikha vs Sushant Nanda on 28 March, 2017

TA No. 743 of 2016 1
TA No. 781 of 2016

HIGH COURT FOR THE STATES OF PUNJAB HARYANA
AT CHANDIGARH

TA No. 743 of 2016
Date of decision: 28.3.2017

Shikha Nanda …Applicant

Versus

Sushant Nanda …Respondent

2. TA No. 781 of 2016

Shikha Nanda …Applicant

Versus

Sushant Nanda …Respondent

CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present: Mr. Naresh Gopal Sharma, Advocate
for the applicant.

Mr. H.S. Randhawa, Advocate for
Mr. P.S. Ahluwalia, Advocate
for the respondent.

RAMESHWAR SINGH MALIK, J. (Oral)

These two transfer applications bearing TA Nos. 743 and 781 of

2016 are being decided together, as both these applications are arising out of

the same set of facts and between the same parties. However, for the facility

of reference, facts are being culled out from TA No. 743 of 2016.

Applicant, by way of these two transfer applications under

Section 24 read with Section 151 of the Code of Civil Procedure (for short

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TA No. 781 of 2016

‘CPC’), seeks transfer of the petition under Section 9 of the Hindu Marriage

Act, 1955, as well as petition under Sections 6 and 25 of the Guardian and

Ward Act, 1890, titled as Sushant Nanda Vs. Shikha Nanda, filed by

respondent husband from Dasuya, District Hoshiarpur to Nakordar, District

Jalandhar.

Notice of motion was issued and learned trial court was directed

to adjourn the case beyond the date fixed before this Court.

Heard learned counsel for the parties.

It has gone undisputed between the parties that the applicant-

wife, along with her three minor children, is staying with her parents at her

parental village in District Jalandhar. Respondent-husband is not paying any

amount of maintenance either for the applicant or for the minor children.

Since applicant-wife is not having any regular source of income, she is

dependent on her parents. Distance between Dasuya, District Hoshiarpur

and Nakordar, District Jalandhar, is more than 80 Kms.

The only argument raised by the learned counsel for the

respondent that respondent-husband is having apprehension, at the hands of

the applicant-wife and her family members, has been duly considered but

found misplaced and not worth acceptance.

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 both these transfer applications have been found to be fit cases

for ordering the transfer of abovesaid petitions from Dasuya, District

Hoshiarpur to Nakordar, District Jalandhar. It is so said because all the

abovesaid undisputed facts clearly go in favour of the applicant-wife and

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TA No. 781 of 2016

against the respondent-husband. In the circumstances of the cases, it will not

only be inconvenient but would be very difficult for the applicant-wife to go

from Nakordar, District Jalandhar to Dasuya, District Hoshiarpur, to pursue

the litigation imposed on her by the respondent-husband. Convenience of the

wife in transfer applications, like the cases in hand, 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,

her age as well as her responsibility for bringing up the minor children, are

the relevant factors to be considered, while deciding the transfer applications

like the present ones.

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 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.

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TA No. 781 of 2016

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.

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

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TA No. 781 of 2016

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: –

“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

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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

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(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.

Reverting to the facts of the cases 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 abovesaid petitions transferred from

Dasuya, District Hoshiarpur to Nakordar, District Jalandhar, 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 Nakordar, District Jalandhar to

Dasuya, District Hoshiarpur, 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

abovesaid petitions from Dasuya, District Hoshiarpur to Nakordar, District

Jalandhar.

No other argument was raised.

Considering the peculiar facts and circumstances of the cases

noted above, coupled with the reasons aforementioned, this Court is of the

considered view that both these transfer applications deserve to be accepted

and the same are hereby allowed. Both the abovesaid petitions filed by the

respondent-husband are ordered to be transferred from Dasuya, District

Hoshiarpur to Nakordar, District Jalandhar.

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Accordingly, the learned District Judge, Hoshiarpur, is directed

to send complete record of the abovesaid petitions to the learned District

Judge, Jalandhar, 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, Jalandhar, is also directed to assign

both the abovesaid cases to the learned court of competent jurisdiction at

Nakodar, for an early decision, in accordance with law.

With the abovesaid observations made and directions issued,

both these transfer applications stand disposed of, however, with no order as

to costs.

28.3.2017 (RAMESHWAR SINGH MALIK)
AK Sharma JUDGE

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

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