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Smt. Indu Devi vs Naveen Kumar on 28 November, 2018

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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2

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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4

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 regard

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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.”

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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