Neelima @ Shalu vs Vicky Kumar @ Vikas Kumar
2022 Latest Caselaw 14670 P&H

T.A.No. 1418 of 2022 (O&M)                     1                       106




              IN THE HIGH COURT OF PUNJAB AND HARYANA
                           AT CHANDIGARH

                                   Transfer Application No. 1418 of 2022
                                             Date of decision: 18.11.2022


Neelima @ Shalu

                                                      ..........Petitioner

                              vs

Vicky Kumar @ Vikas Kumar

                                                      ...........Respondent

CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA

Present:- Mr.Hardeep Singh, Advocate for the petitioner.

NIDHI GUPTA, J.(Oral)

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

transfer of the petition filed by respondent-husband under Section 9

of the Hindu Marriage Act,1955 titled "Vicky Kumar @ Vikas

Kumar vs. Neelima @ Shalu" pending in the Court of Principal

Judge, Family Court, Tohana, District Fatehabad (Haryana) to a Court

of competent jurisdiction at Patiala (Punjab).

2. Learned counsel for the petitioner submits :-

i) that the parties were married on 26.10.2012 according to Hindu rites and rituals.

ii) that two children, one male aged about 09 years and one female aged about 07 years were born out of this wedlock and are presently staying with the petitioner at her parental home at Patiala.

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iii) that the petitioner-wife is living separately from the respondent-husband since 26.11.2016 and living with her parents at their mercy at Patiala.

iv) that the petitioner is unemployed, having no source of income and totally dependent upon her parents and the respondent-husband is not paying anything to her towards maintenance.

v) The respondent-husband has filed the petition under Section 9 of the Hindu Marriage Act, which is pending before the Principal Judge, Family Court, Tohana, District Fatehabad (Haryana).

The proceedings arising out of petitions (1) under Section 13 of the Hindu Marriage Act; and (2) under Section 125 Cr.P.C. filed by the petitioner-wife, are pending in the Courts having competent jurisdiction at Patiala.

v) that the distance between place of residence of the petitioner-wife i.e. Patiala and the place of proceedings under Section 9 of the Hindu Marriage Act, 1955 filed by the respondent-husband, pending before the Principal Judge, Family Court, Tohana, District Fatehabad, is about 80 kilometers of one side.

vi) that father and brother of the petitioner have already expired and the petitioner is totally dependent upon her old aged mother, who is not in a position to accompany her to the Court of proceedings pending at Tohana, District Fatehabad.

3. It is inter alia on these grounds that petitioner prays for

transfer of the case, as detailed in para 1 above.

4. I have heard learned counsel for the petitioner.

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

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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 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

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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 paper-book, 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 filed by respondent husband under Section 9 of Hindu Marriage Act,1955, bearing No. HMA/194/2021 titled as 'Vicky Kumar @ Vikas Kumar vs. Neelima @ Shalu', pending in the Court of Principal Judge, Family Court, Tohana, District Fatehabad is transferred to a Court of competent jurisdiction at Patiala.

b) The ld. District Judge, Fatehabad is directed to transfer complete record pertaining to the aforesaid case to District Judge, Patiala.

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c) The parties are directed to appear before the District & Sessions Judge, Patiala.

d) The District Judge, Patiala will assign the said petition to the Court of competent jurisdiction.

8. The concerned Court at Patiala 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 for attending the Court proceedings at the competent Court at Tohana, District Fatehabad 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 Fatehabad in case the respondent opts to contest this petition.

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

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

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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, Patiala on 16.12.2022 it is directed

that a copy of this order be sent to the respondent 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.

Pending application(s), if any, stands disposed of.

November 18.11.2022                                 ( NIDHI GUPTA )
Vijay Asija                                              JUDGE

Whether speaking/reasoned             YES/NO
Whether Reportable                    YES/NO




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