IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 110 of 2018
Date of Decision: 28.11.2018
.
Smt. Indu Devi …..Petitioner
Versus
Naveen Kumar …..Respondent
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
Yes.
For the Petitioner r : Mr. Surinder Saklani, Advocate
For the Respondent : ex-parte.
Sandeep Sharma, Judge (oral):
Despite service, none came present on behalf of
the sole respondent,however, this Court solely with a view
that respondent does not remain unrepresented repeatedly
passed over the matter, but since none has come present,
this Court has no option, but to proceed him against ex-
parte.
2. By way of instant petition filed under Section 24
of the Code of Civil Procedure, prayer has been made on
behalf of the petitioner for transfer of case No.66-S/30/17,
titled as Naveen Kumar versus Smt. Indu Devi, pending
in the Court of learned Additional District Judge (II), Shimla
1
Whether the reporters of the local papers may be allowed to see the judgment?
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to the Court of learned District Judge, Sirmour at Nahan, H.P.,
Circuit Court at Paonta Sahib.
.
3. The marriage between the petitioner and the
respondent was solemnized on 3.5.2013 at village Bhaila,
Post Office Negheta, Tehsil Paonta Sahib, District Sirmour,
Himachal Pradesh, but fact remains that they were unable to
live together on account of certain differences and as such,
petitioner left her matrimonial house and started living with
her father at village Bhaila, Post Office, Negheta, Tehsil
Paonta Sahib, District Sirmour, H.P.
4. As per the averments contained in the petition,
respondent filed petition (Annexure P-2) under Section 13
of the Hindu Marriage Act, 1955 ( for shot the ‘Act’) in the
Court of learned Additional District Judge (II) Shimla, seeking
therein dissolution of marriage on the ground of cruelty. After
having received summons/notices (Annexure P-1) issued
by learned Additional District Judge (II), Shimla 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
Judge(II), Shimla to the Court of learned District Judge,
Sirmour at Nahan, H.P., circuit Court at Paonta Sahib on the
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grounds of inconvenience, insufficiency of means,
compulsive litigation and on the ground that the distance
.
between Paonta Sahib, District Sirmaur and Shimla is more
than 190 KMs and it is difficult for her to attend the Court at
Shimla, District Shimla, H.P.
5. Since, despite opportunity having been afforded
to the respondent, he has failed to file the reply, this Court
has no option but to take into consideration the averments
contained in the petition while considering the prayer having
been made by the petitioner for transfer of the case.
6. Having heard learned counsel representing the
petitioner and perused the material available on record, this
Court has no hesitation to conclude that matrimonial
proceedings and other like proceedings, which are the
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.
7. Careful perusal of the averments contained in the
petition under Section 13 of the Hindu Marriage Act, 1955 for
decree of divorce having been filed by the respondent, itself
suggest that the parties cohabited as husband and wife at
their native village, Dochi hardly for two years after the
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marriage, which had taken place on 3.5.2013. As per the
averments contained in the divorce petition (Annexure P-
.
2), petitioner left the company of the respondent in
November, 2015 and since then she is living separately from
her husband. Factum with regard to petitioner’s living
separately for the last three years stands duly mentioned in
the petition for divorce filed by the respondent, hence, there
cannot be any dispute that present petitioner is living with
her father at village Bhaila, Post office Nagheta, Tehsil
Paonta, District Sirmour, H.P. Petitioner, who was totally
dependent upon her husband is compelled to live at her
native place with her father. It is also not in dispute that
there is one minor daughter born out of the wedlock of the
petitioner and respondent and she is also residing with the
petitioner.
8. 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.
9. 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
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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.
10. 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 Court that convenience of wife was the prime
consideration.
11. 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 regard01/12/2018 22:56:23 :::HCHP
6to 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 orother 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 isnot only the power, but the duty of the Court to make such
order.”
12. 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.
13. 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.
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14. 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 parent house at Bhaila, Post Office
Negheta, Tehsil Paonta Sahib, District Sirmour, H.P., 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.
15. In view of the aforesaid discussion, the present
petition is allowed and the case No.66-S/30/17 titled as Naveen
Kumar vs. Smt. Indu Devi, pending in the Court of learned
Additional District Judge(II),Shimla is ordered to be transferred to
the Court of learned District Judge, Sirmour at Nahah, Circuit
Court at Paonta Sahib. The parties through their respective
counsel(s) are directed to appear before the learned District
Judge, Sirmour at Nahan on 20.12.2018.
The petition stands disposed of in the aforesaid terms,
so also pending application(s), if any. Interim order granted by
this Court on 4.5.2018, is vacated.
(Sandeep Sharma),
Judge
28th November,2018
(shankar)
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