Usha vs Ajay
2022 Latest Caselaw 17045 P&H

T.A.No.1559 of 2022(O&M)                                                                         1



                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                CHANDIGARH

                                                              TA No.1559 of 2022 (O&M)
                                                              Date of decision: 16.12.2022
          Usha                                                     ...Petitioner(s)
                                        vs

          Ajay                                                      ...Respondent(s)

          CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA

          Present:- Mr. Tanvir Singh Attariwala, Advocate for the petitioner.

                           ***

NIDHI GUPTA, J.(Oral)

1. Prayer in this petition filed by petitioner wife is for transfer of

the petition bearing No.DMC-670/2022 filed by respondent-husband

under Section 13 of the Hindu Marriage Act, 1955, titled "Ajay vs. Usha"

pending in the Court of Principal District Judge, Family Court, Hisar, to a

court of competent jurisdiction at Bhiwani.

2. Learned counsel for the petitioner, inter alia, submits that:

i) that the parties were married on 06.01.2011 according to Hindu rites and rituals.

ii) that one son was born out of the wedlock.

iii) that the petitioner along with minor son is living with her aged parents at Bhiwani.

iv) that distance between place of residence and place of proceedings is 70 kms. (one side)

v) that the parties are living separately since the year 2015.

vi) that the petitioner has also filed petition under Section 125 Cr.P.C.; complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 at Bhiwani; FIR No.303 dated 20.05.2022 under Section 506 IPC at Police Station Bhiwani City, District Bhiwani.

vii) that the respondent is working in Haryana Police.

3. I have heard learned counsel for the petitioner.

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4. The legal position in such like cases as the present one, is well

established. In this regard, judgment of the Hon'ble Supreme Court

rendered in N.C.V. Aishwarya vs A.S. Saravana Karthik Sha," 2022

Live Law (SC) 627, is most relevant wherein the Hon'ble Supreme

Court has held as under:-

"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 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."

5. Further reliance can be placed upon the judgments in "Sumita

Singh vs Kumar Sanjay", 2002 SC 396 and "Rajani Kishor

Pardeshivs Kishor Babulal Pardeshi", 2005(12) SCC 237, wherein the

Hon'ble Supreme Court has observed that "while deciding the transfer

application, the Courts are required to give more weightage and

consideration to the convenience of the female litigants and transfer of

legal proceedings from one Court to another should ordinarily be

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allowed, taking into consideration their convenience and the Courts

should desist from putting female litigants under undue hardships."

6. Even this Court in number of cases has followed the aforesaid

principle of law. Accordingly, it is well settled that while considering the

transfer of a matrimonial dispute/case, at the instance of the wife, the

Court is to consider the family condition of the wife, the custody of the

minor child, economic condition of the wife, her physical health and

earning capacity of the husband and most important the convenience of

the wife i.e. she cannot travel alone without assistance of a male member

of her family, connectivity of the place to and fro from her place of

residence as well as bearing of the litigation charges and travelling

expenses.

7. After going through the entire paperbook, considering the fact

that issuance of notice to the respondent has the consequences of staying

further proceedings before the trial Court, otherwise the petitioner-wife

will have to bear the litigation expenses and transportation expenses and

in case, notice of motion is issued, even the respondent-husband has to

bear the litigation expenses and in view of the judgments i.e. Sumita

Singh's case (supra), Rajani Kishor Pardeshi's case (supra) and N.C.V.

Aishwarya's case (supra) passed by the Hon'ble Supreme Court, this

Court deems it appropriate to allow the present petition, subject to the

following conditions:-

a) The petition bearing No.DMC-670/2022 filed by

respondent-husband under Section 13 of the Hindu Marriage

Act, 1955, titled "Ajay vs. Usha" pending in the Court of

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Principal District Judge, Family Court, Hisar, is transferred to

a court of competent jurisdiction at Bhiwani.

b) The ld. District Judge, Hisar is directed to transfer complete

record pertaining to the aforesaid case to District Judge,

Bhiwani.

c) The parties are directed to appear before the District

& Sessions Judge, Bhiwani on 20.01.2023.

d) The District Judge, Bhiwani will assign the said

petition to the Court of competent jurisdiction.

8. The concerned Court at Bhiwani will make all endeavour to

refer the case before the Mediation and Conciliation Centre for exploring

the possibility of some amicable settlement between the parties.

9. The Court concerned, where the litigation pending between

the parties, will accommodate them with one date in one calendar month.

10. However, liberty is granted to the respondent to revive this

petition, if he intends to contest the same, provided that:-

(a) The respondent will clear all arrears of maintenance

amount, if any, in terms of any petition filed by the

petitioner either under Section 125 Cr.P.C. or Section 12

of the Domestic Violence Act or Section 24 of the Hindu

Marriage Act.

(b) The respondent will file an affidavit giving

undertaking to pay Rs.1,000/- per day, to the petitioner

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for attending the Court proceedings at District Courts,

Hisar on each and every date of hearing.

(c) The respondent will bring a demand draft of

Rs.25,000/-, drawn in favour of petitioner, towards the

litigation expenses to pursue the case at District Hisar in

case the respondent opts to contest this petition.

11. I am supported in the above by decisions rendered by a Co-

ordinate Bench of this Court in TA No. 1315/2022, Rohini Arora v

Nitin Talwar; TA No. 1322 of 2022, Jaswinder Kaur v Gurvinderjeet

Singh; and TA No. 1323 of 2022, Usha Rani v Karmajit Singh.

12. As already noticed above, since the petition is being disposed

of without issuing notice to the respondent, accordingly, in these peculiar

circumstances, in order to ensure appearance of the parties before the

District Judge, Bhiwani on 20.01.2023, it is directed that a copy of this

order be sent to the respondent(s) through registered post, besides

sending a copy of this order to the District Judges concerned through e-

mail. Petitioner through her counsel, present in the Court, is directed to

ensure her appearance accordingly.

Disposed of.

          16.12.2022                                        (Nidhi Gupta)
          ashok                                                Judge
          Whether speaking/reasoned: Yes/No
          Whether reportable:       Yes/No




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