IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 454 of 2018
Date of Decision: 3.01.2019
.
Smt. Uma Devi …..Petitioner
Versus
Kuldeep Singh …..Respondent
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
Yes.
For the Petitioner r : Mr. Vijay Singh Thakur, Advocate
For the Respondent: Mr. Paras Ram, Advocate vice Mr. B.R.
Kashyap, Advocate
Sandeep Sharma, Judge (oral):
By way of instant petition filed under Article 227 of
the Constitution of India read with Section 24 of the Code of
Civil Procedure, prayer has been made on behalf of the
petitioner for transfer of case No.113 of 2018, titled as Sh.
Kuldeep Singh Thakur versus Smt. Uma Devi, pending in
the Court of learned District Judge, Shimla, District Shimla, H.P.
to the Court of learned Additional District Judge, Palampur,
District Kangra, H.P.
2. The marriage between the petitioner and the
respondent was solemnized on 3.02.1993 in the village at
Kangra in accordance with Hindu rites and customs, but fact
1
Whether the reporters of the local papers may be allowed to see the judgment?
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remains that they were unable to live together for long on
account of certain differences.
.
3. As per the averments contained in the petition,
respondent has filed petition under Section 13 of the Hindu
Marriage Act ( for shot the ‘Act’) in the Court of learned
District Judge, Shimla , District Shimla , H.P., seeking therein
dissolution of marriage. After having received summons/
notices issued by learned District Judge, 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 District Judge, Shimla to the Court of
learned Additional District Judge, Palampur, District Kangra,
H.P., on the grounds of inconvenience, insufficiency of means,
compulsive litigation and on the ground that the distance
between Shimla and Palampur is more than 233 KMs and it is
difficult for her to attend the Court at Shimla, District Shimla,
H.P.
4. Having heard learned counsel representing the
parties and perused the material available on record, this
Court has no hesitation to conclude that in the matrimonial
proceedings and other like proceedings, which are the
outcome of matrimonial discord, it is the convenience of the
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wife which is required to be taken into consideration by the
Court while considering the prayer, if any, made for transfer of
.
the case.
5. 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.
6. 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, 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.
7. 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.
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8. 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 ofconvenience or inconvenience to the plaintiff or the
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 thesuit 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 instanceswhich 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 likelyto 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.”
9. 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,
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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.
10. 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.
11. 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 parental house 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.
12. In the case at hand, bare perusal of the averments
contained in the petition suggest that petitioner is residing at her
matrimonial house at Kangra with her daughter namely Priyanka
@ sonu, who is suffering from permanent disability of 100% and
one son Abhishek, suffering from muscle disorder having
permanent disability of 75% (Annexures P-1 P-2). Both the
children are in the custody of present petitioner, rather they are
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dependent on her and as such, it would be difficult for her to visit
Shimla time and again to attend the court in connection with
.
divorce petition having been filed by the respondent.
13. In view of the aforesaid discussion, the present petition
is allowed and the case No.113 of 2018 titled as Sh. Kuldeep
Singh Thakur versus Smt. Uma Devi, pending in the Court of
learned District Judge, Shimla, District Shimla, H.P. is ordered to be
transferred to the Court of learned Additional District Judge,
Palampur, District Kangra, H.P. Record, if any, be sent forthwith.
14. The parties through their respective counsel(s) are
directed to appear before the learned Additional District Judge,
Palampur, District Kangra, H.P. on 16.01.2019.
The petition stands disposed of in the aforesaid terms,
so also pending application(s), if any.
(Sandeep Sharma),
Judge
3rd January, 2019
(shankar)
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