Himachal Pradesh High Court
________________________________________________________________ vs Anil Kumar on 7 January, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 453 of 2019
Date of Decision: 7.01.2021
.
________________________________________________________________
Smt. Priyanaka .....Petitioner
Versus
Anil Kumar .....Respondent
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Mr. Ajit Sharma and Mr. Prashant Sharma,
Advocates, through video-conferencing.
Sandeep Sharma, Judge (oral):
r to
For the Respondent: Mr. R.L.Chaudhary, Advocate, through video-
conferencing.
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 bearing HMA No. 147 of 2019, titled as Anil Kumar
versus Priyanaka, pending in the Court of learned District Judge, Una,
District Una, H.P., to the Court of learned District Judge (Family Court)
Bilaspur, District Bilaspur, H.P.
2. The marriage between the petitioner and the respondent
was solemnized on 27.4.2018 according to Hindu rites and customs
prevailing in the area, but fact 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(i) (ia) of the Hindu Marriage Act ( for
Whether the reporters of the local papers may be allowed to see the judgment?
shot the 'Act') in the Court of learned District Judge), Una , District
Una, H.P., seeking therein dissolution of marriage. After having
received summons/ notices issued by the Court below 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, Una,
District Una, H.P., to the Court of learned District Judge (Family Court)
Bilaspur, District Bilaspur, H.P., on the grounds of inconvenience,
insufficiency of means, compulsive litigation and on the ground that the
distance between Mandi and Solan is more than 114 Km and it is
difficult for her to attend the Court at Una, 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 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.
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 of
convenience 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 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."
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, 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 view of the aforesaid discussion, the present petition is
allowed and the case bearing HMA No. 147 of 2019, titled as Anil
Kumar versus Priyanaka, pending in the Court of learned District
Judge, Una, District Una, H.P., is ordered to be transferred to the Court
of learned District Judge (Family Court) Bilaspur, District Bilaspur,
H.P., forthwith.
13. The parties through their respective counsel(s) are directed
to appear before the learned District Judge (Family Court) Solan,
District Solan, H.P., on 8.3.2021
The petition stands disposed of in the aforesaid terms, so
also pending application(s), if any.
(Sandeep Sharma),
Judge
January 07, 2021
(shankar)
