Himachal Pradesh High Court

Decided On : 04Th November vs Shri Rajeev Pathik on 4 November, 2024

2024:HHC:10907

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No:706 of 2023 Decided on : 04th November, 2024 __________________________________________________________ Chandni ...Petitioner

Versus

Shri Rajeev Pathik ....Respondent

Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes

For the petitioner : Ms. Seema K. Guleria, Advocate.

For the respondent : Mr. Harsh Khanna, Advocate.

Ranjan Sharma, Judge [Oral] The respondent, namely, Rajeev Pathik,

has filed a HMA No.179-S/3 of 2023, titled as Rajeev

Pathik versus Chandni, which is pending before the

Learned Principal Judge (Family Court) Shimla,

Himachal Pradesh.

2. By way of this petition, the petitioner-wife,

Chandni, has filed the instant CMPMO with the

following relief(s):-

" It is, therefore, respectfully prayed that this petition may kindly be allowed and the petition

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

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filed by the respondent under Section 13 of Hindu Marriage Act in the Court of Ld. Principal Judge (Family Court), Shimla bearing HMA No.179-S/3 of 2023, titled as Rajeev Pathik versus Chandni, fixed for 06.01.2024 may kindly be transferred to the Court of Ld. Principal Judge (Family Court) Mandi, District Mandi, H.P. and justice be done."

FACTUAL MATRIX:

3. Case set up by Ms. Seema K. Guleria,

Learned Counsel is that the marriage of

Petitioner-Chandini was solemnized with Respondent-

Rajiv Pathik on 14.08.2012 and both resided together

at Shimla but, the respondent, turned out the

petitioner from his matrimonial home. Since then, the

petitioner is stated to be residing at her parental house

at Village Daunt, P.O. Jarol tehsil Thunag, District

Mandi [H.P]. It is averred that the petitioner has filed a

Petition No. 28 of 2022 before Learned Chief Judicial

Magistrate, Mandi under Domestic Violence Act,

claiming maintenance, which is pending adjudication.

3(i). Petitioner further submits that she has no

means of livelihood and she has no movable and

immovable property in her name and she is unable to

attend the proceedings at Shimla due to financial

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constraints. It is further averred that on the other

hand the respondent is financially well of having

sharing movable and immovable properties who can

come over to Mandi, which will not cause any

prejudice to the Respondent, who can attend both the

proceedings [DVA case and HMA case] at one place i.e.

Mandi [H.P].

In above background, the petitioner has

prayed that the proceedings i.e. HMA No.179-S/3 of

2023, titled as Rajeev Pathik versus Chandni, pending

before the Court of Learned. Principal Judge (Family

Court), Shimla (HP) may be transferred to the Court of

Learned Principal Judge [Family Court] Mandi [HP].

PROCEEDINGS BEFORE THIS COURT:

4. Upon issuance of notice on 21.12.2023,

Mr. Harsh Khanna, Learned Counsel appeared for the

Respondent on 10.01.2024, when, the parties

represented to refer the matter for mediation, which

remained futile, in terms of the report furnished by

Learned Meditator.


4(i).     Upon listing of the case today, no serious
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opposition has been made by the learned Counsel for

Respondent to the prayer in these proceedings.

5. Heard Ms. Seema K. Guleria, learned

counsel for the petitioner as well as Mr. Harsh

Khanna, learned counsel for the respondent and also

gone through the case records.

MANDATE OF LAW REGARDING TRANSFER OF PROCEEDINGS:

6. While dealing with the issue of transfer of

proceedings from one court to another in matrimonial

matters, convenience of wife is to be preferred over

convenience of husband, in terms of the mandate of

the Hon'ble Supreme Court in Rajani Kishor Pardeshi

Versus Kishor Babulal Pardeshi (2005) 12 SCC 237,

in following terms:-

" In this type of matter, the convenience of the wife is to be preferred over the convenience of the husband. Hindu Marriage Petition No.6 of 2004, Kishor Babulal Pardeshi v. Rajani Kishor Pardeshi pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra is transferred to the Family Court of proper jurisdiction at Satana, Madhya Pradesh."

6(i). In Civil Appeal No.4894 of 2022 [arising

out of SLP(C) No(s).16465 of 2021], titled as N.C.V.

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Aishwarya versus A.S. Saravana Karthik Sha,

the Hon'ble Supreme Court has outlined the cardinal

principles for considering prayer for transfer of

proceedings, from one Court-place to another, in

matrimonial matters, in following terms:-

"8. It is not disputed that the appellant is the resident of Chennai and that the appellant's husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.

9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic

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paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer.

10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions."

ANALYSIS:

7. Taking into account the entirety of the facts

and circumstances of the case and the cardinal

principles outlined by the Hon'ble Supreme Court,

in N.C.V. Aishwarya's case [supra], this court is of

considered view, that the present petition deserves to

be allowed, for the reason, that firstly, the convenience

of petitioner-wife has to prefer over the convenience of

the Respondent; and secondly, once the petitioner-wife

asserts herself to be economically unsound; having no

source of livelihood and having no movable or

immovable property in her name also supports the

plea of the petitioner; and thirdly, the financial

constraints of the petitioner-wife discussing her to

come over from Thunag [in District Mandi] to Shimla

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[in District Shimla] to attend hearing(s) of case is also

a relevant factor; and fourthly, transfer of instant

proceedings will enable the parties to participate in

both the cases i.e. HMA Case and DVA Case at one

place [at Mandi] which shall certainly effectuate the

cause of justice between the parties herein; and lastly,

once the Learned Counsel for the Respondent has also

not seriously opposed the prayer of the petitioner then,

in these circumstances, the plea of the petitioner

carries weight and deserves to be allowed.

7(i). A similar issue, praying for transfer of

proceedings from one Court to another, has been

granted in CMPMO No.604 of 2023, titled as

Manisha Thakur versus Akash Chauhan, decided

on 05.12.2023 and in CMPMO No.688 of 2023,

titled as Sumiti Chandel versus Parvesh Singh,

decided on 10.01.2024 in following terms:-

"6. In view of the mandate of law referred to above, and the no objection accorded by the learned counsel for the respondent herein; the present petition is allowed and H.M. Misc. Petition No. 351 of 2023, titled as Parvesh Singh Vs Sumiti Chandel, pending before the Additional Principal Judge Family