Himachal Pradesh High Court
Manisha Kashyap vs Mahender Kumar on 30 October, 2023
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 505 of 2023
Decided on: October 30, 2023
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Manisha Kashyap ...........Petitioner
Versus
Mahender Kumar ....Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1No.
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For the Petitioner : Mr. Piyush Agnihotri, Advocate vice
Mr. Ajeet Singh Saklani, Advocate. .
For the Respondent : In person.
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Sandeep Sharma, Judge (oral):
By way of instant petition filed under Art. 227 of the
Constitution of India read with S.24 CPC, prayer has been made by the
petitioner for transfer of Petition HMA No. 106 of 2023 titled Mahender
v. Manisha pending before learned Additional District Judge, Nalagarh,
District Solan, Himachal Pradesh to the court of learned District and
Sessions Judge, Family Court, Shimla, Himachal Pradesh.
2. Pursuant to notice issued in the instant petition, respondent has
come present in preson.
3. As per the averments contained in the petition, respondent has
filed a petition under Section 13 of the Hindu Marriage Act (for short the
'Act') in the Court of learned Additional District Judge, Nalagarh,
District Solan, Himachal Pradesh, 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
Whether the reporters of the local papers may be allowed to see the judgment?
(husband), petitioner has approached this Court in the instant
proceedings, praying therein to transfer the proceedings from the Court
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of learned Additional District Judge, Nalagarh, District Solan, Himachal
Pradesh to the court of learned District and Sessions Judge, Family
Court, Shimla, Himachal Pradesh, on the grounds of inconvenience,
insufficiency of means, compulsive litigation.
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 v. 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 v. 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 v. 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 v.
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 v. 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
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the wife, the proceedings were ordered to be transferred.
10. Similarly, in Anjali Ashok Sadhwani v. 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 wife/lady is compelled to reside
at her parental house on account of matrimonial dispute, it is
convenience of the wife/lady, 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 HMA No. 106 of 2023 titled Mahender v. Manisha is
ordered to be transferred from the court of learned Additional District
Judge, Nalagarh, District Solan, Himachal Pradesh to the court of
learned District and Sessions Judge, Family Court, Shimla, Himachal
Pradesh, forthwith.
13. The parties are directed to appear before the learned District
and Sessions Judge, Family Court, Shimla, Himachal Pradesh on
6.11.2023. The petition stands disposed of in the aforesaid terms, so
also pending application(s), if any.
(Sandeep Sharma)
Judge
October 30, 2023
(vikrant)
