Himachal Pradesh High Court

Shivani Sharma vs Prince Sharma on 6 September, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

( 2024:HHC:8049 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                     Decided on: 06.09.2024





    Shivani Sharma                                               ...Petitioner

                                     Versus





    Prince Sharma                        ....Respondent.

........................................................................................... Coram Ms. Justice Jyotsna Rewal Dua, Judge

Whether approved for reporting?1

For the petitioner: Mr. Raman Sharma, Advocate.

    For the respondent:              Nemo.


    Jyotsna Rewal Dua, Judge

Parties are husband and wife. Petitioner (wife) seeks

transfer of HMA No. 35/2024 instituted by the respondent under

Section 9 of the Hindu Marriage Act from the Court of learned

Additional Principal Judge Family Court Una, Circuit Court Camp

Amb, District Una, H.P. to the Court of learned Principal Judge

Family Court Barsar, District Hamirpur, H.P. The respondent though

served, however, has chosen not to attend and contest the petition.

2. Learned counsel for the petitioner submitted that the

marriage between the parties was solemnized as per Hindu rites

and ceremonies on 20.06.2021; They were blessed with a male

child; Due to matrimonial discord between the parties, the petitioner

Whether reporters of the local papers may be allowed to see the judgment? yes

( 2024:HHC:8049 )

w.e.f. 27.04.2023 has been residing with her windowed mother at

Village Makteri, Post Office Bhakreri, Tehsil Barsar, District

Hamirpur; Petitioner is not in a position to defend the petition

instituted against her by the respondent-husband at Circuit Court

Camp Amb, District Una; On account of financial constraints, it is

difficult for her to attend the hearings in the Court of learned

Additional Principal Judge Family Court Una, Circuit Court Camp

Amb, District Una, H.P.

3. I have heard learned counsel for the petitioner and

considered the case file.

Hon'ble Apex Court in Sumita Singh Versus Kumar

Sanjay and another2; Soma Choudhury Versus Gourab

Choudhaury3; Rajani Kishor Pardeshi Versus Kishor Babulal

Pardeshi4; Arti Rani alias Pinki Devi and another Versus

Dharmendra Kumar Gupta5; and Anjali Ashok Sadhwani Versus

Ashok Kishinchand Sadhwani6, has held that it is the wife's

convenience, which must be looked at in a case where she seeks

transfer of the petition.

(2001) 10 SCC 41

(2004) 13 SCC 462

(2005) 12 SCC 237,

(2008) 9 SCC 353

AIR 2009 SC 1374

( 2024:HHC:8049 )

In Kulwinder Kaur alias Kulwinder Gurcharan Singh

versus Kandi Friends Education Trust and others7, following

parameters for transfer of cases were outlined:-

"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 question 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."

In Krishna Veni Nagam Versus Harish Nagam8,

another trend where instead of transferring the proceedings at the

convenience of wife, the husband's paying travel, lodging and

boarding expenses of wife and/or persons accompanying for each

hearing was noticed and considered. It was observed as under:-

"14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such

(2008) 3 SCC 659

(2017) 4 SCC 150

( 2024:HHC:8049 )

facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever

.

one or both the parties make a request for use of

videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by videoconferencing.

18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine

whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:

(i) Availability of videoconferencing facility.

(ii) Availability of legal aid service.

(iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.

(iv) E-mail address/phone number, if any, at which litigant from outstation may communicate."

Recently the Hon'ble Apex Court in N.C.V. Aishwarya

Vs. A.S. Saravana Karthik Sha9 has held as under:-

"9. The cardinal principle for the 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 socio-economic paradigm

AIR 2022 SC 4318

( 2024:HHC:8049 )

in Indian society, generally, it is the wife's convenience which

must be looked at while considering transfer."

4. As per projected case of the petitioner, she alongwith

her child is living separately with her widowed mother at Village

Makteri, Post Office Bhakreri, Tehsil Barsar, District Hamirpur w.e.f.

27.04.2023. Considering the submissions made by learned counsel

for the petitioner and in view of the law laid down by the Hon'ble

Supreme Court that

wife's convenience is of

consideration, the petitioner has made out a case for transfer of the r paramount

petition. Accordingly, HMA No. 35/2024 titled Prince Sharma Vs.

Shivani pending before Court of learned Additional Principal Judge

Family Court Una, Circuit Court Camp Amb, District Una, H.P. is

ordered to be transferred to the Court of learned Principal Judge