Himachal Pradesh High Court

Mala Devi vs Hitesh Kumar on 12 September, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.473 of 2024 Date of decision: 12.09.2024

    Mala Devi.                                                             ...Petitioner.





                                    Versus
    Hitesh Kumar.                                                      ...Respondent.





    Coram:

Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?

For the petitioner : Mr. Karan Singh Kanwar, Advocate.

For the respondents : Mr. Vinod Chauhan, Advocate.

Jyotsna Rewal Dua, Judge

Petitioner is wife of respondent and has moved

this petition Section 24 of the Civil Procedure Code for

transfer of petition preferred by respondent under Section 9

of Hindu Marriage Act, 1955 bearing HMA No.123 of 2023

(Hitesh Kumar vs. Mala Devi) from the Court of learned

Additional Principal Judge (Family Court), Paonta Sahib,

District Sirmaur (H.P.) to the Court of learned Principal

Judge (Family Court), Solan (H.P).

2. The petition has been filed with averments that

the marriage between the parties was solemnized on

09.12.2020. Immediately thereafter, relations between the

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

parties become sour. Ffrom the beginning of year 2021, the

petitioner has been residing with her parents in Solan.

3. The petitioner seeks transfer of a petition moved

by the respondent under Section 9 of Hindu Marriage Act,

1955, bearing HMA No.123 of 2023 (Hitesh Kumar vs.

Mala Devi) pending in the Court of learned Additional

Principal Judge (Family Court), Paonta Sahib, District

Sirmaur (H.P.) to the Court of learned Principal Judge

(Family Court), Solan (H.P). The transfer has been sought on

the ground that:- The petitioner is unemployed; She is

presently residing in Solan with her mother aged 64 years;

Petitioner has already lost her father; The only brother of the

petitioner, who was looking after the petitioner and her

mother recently died on 02.06.2024. Under these

circumstances, it would be difficult for the petitioner to

attend the case proceedings instituted by the respondent

against her at Paonta Sahib. Petitioner would not be in a

position to pursue her case properly at Paonta Sahib.

Learned counsel for the respondent refuted the

allegations levelled by the petitioner regarding atrocities

committed upon her by the respondent.

4. I have heard learned counsel for the parties and

gone through the case file.

Hon'ble Apex Court in Sumita Singh Versus

Kumar Sanjay and another1; Soma Choudhury Versus

Gourab Choudhaury2; Rajani Kishor Pardeshi Versus

Kishor Babulal Pardeshi3; Arti Rani alias Pinki Devi and

another Versus Dharmendra Kumar Gupta4; and Anjali

Ashok Sadhwani Versus Ashok Kishinchand Sadhwani 5,

has held that it is the wife's convenience, which must be

looked at in a case where she seeks transfer of the petition.

In Kulwinder Kaur alias Kulwinder Gurcharan Singh

versus Kandi Friends Education Trust and others6,

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

(2001) 10 SCC 41

(2004) 13 SCC 462

(2005) 12 SCC 237

(2008) 9 SCC 353

AIR 2009 SC 1374

(2008) 3 SCC 659

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 Nagam7,

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 facility is available, it ought to be

(2017) 4 SCC 150

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 r 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: