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Sonia Aggarwal vs Gagan Munish Garg on 29 March, 2017

TA No.86 of 2017 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

TA No.86 of 2017
Date of decision: 29.03.2017

Sonia Aggarwal
… Applicant
Vs.
Gagan Munish Garg
… Respondent
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK

Present: Mr. Rajesh Bhatheja, Advocate for the applicant.

Mr. Digvijay Nagpal, Advocate for the respondent.

*******

RAMESHWAR SINGH MALIK, J. (ORAL)

Applicant-wife, by way of instant transfer application under

Section 24 of the Code of Civil Procedure (for short ‘CPC’), seeks transfer of a

petition under Section 13 of the Hindu Marriage Act, 1955 (‘the Act’ for short)

titled as Gagan Munish Garg Vs. Sonia Aggarwal filed by the respondent-

husband from Fazilka to Ferozepur.

Notice of motion was issued and in the meantime, learned Court

below was directed to adjourn the case beyond the date fixed before this

Court.

Heard learned counsel for the parties.

It has gone undisputed before this Court that the applicant-wife is

serving at Moga. Since brother of the applicant is serving in District Courts,

Moga, she has not made the prayer for transfer of divorce petition from

Fazilka to Moga so that the respondent-husband may not have any objection

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in this regard. Distance between Fazilka and Moga is about 150 kilometers.

The solitary contention raised by learned counsel for the

respondent, placing reliance on a judgment of the Hon’ble Supreme Court in

Anindita Das Vs. Srijit Das, (2006) 9 Supreme Court Cases 197, has been

duly considered, but found wholly misplaced and not worth acceptance. There

is no dispute about the observations made by the Hon’ble Supreme Court in

Anindita Das’s case (supra) but on close perusal of the cited judgment, it has

not been found of any help to the respondent-husband, being clearly

distinguishable on facts.

In view of the abovesaid undisputed fact situation of the case, this

Court feels no hesitation to conclude that it is just and expedient to transfer the

petition under Section 13 of the Act from Fazilka to Ferozepur. It is so said

because all the abovesaid undisputed facts clearly go in favour of the

applicant-wife and against the respondent-husband. In the circumstances of

the case, it will not only be inconvenient but would be very difficult for the

applicant-wife to go from Ferozepur to Fazilka to pursue the litigation

imposed on her by the respondent-husband under Section 13 of the Act.

Convenience of the wife in transfer applications, like the present one, arising

out of a matrimonial dispute, is one of the relevant consideration. 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 child,

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

applications like the present one.

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

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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.

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.

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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 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

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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 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

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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 abovesaid 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

(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 case 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 petition under Section 13 of the Act

transferred from Fazilka to Ferozepur, 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 Ferozepur to Fazilka, it would amount to denial of justice to

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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 petition under Section 13 of the Act from Fazilka to Ferozepur.

No other argument was raised.

Considering the peculiar facts and circumstances of the case

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

considered view that instant transfer application deserves to be accepted and

the same is hereby allowed. Petition under Section 13 of the Act titled as

Gagan Munish Garg Vs. Sonia Aggarwal filed by the respondent-husband is

ordered to be transferred from Fazilka to Ferozepur.

Accordingly, the learned District Judge, Fazilka is directed to

send complete record of the abovesaid petition to the learned District Judge,

Ferozepur 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, Ferozepur is also directed either to

decide the case himself or assign it to the learned Court of competent

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

With the abovesaid observations made and directions issued,

present transfer application stands disposed of, however, with no order as to

costs.

[ RAMESHWAR SINGH MALIK ]
29.03.2017 JUDGE
vishnu

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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