Punjab-Haryana High Court
Nandita Choudhary vs Akash Mishra on 24 November, 2022
T.A.No. 1196 of 2022 (O&M) 1 227
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Transfer Application No. 1196 of 2022 (O & M)
Date of decision: 24.11.2022
Nandita Choudhary
..........Petitioner
vs
Akash Mishra
...........Respondent
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Rohit Rana, Advocate
for the petitioner.
None for the respondent despite service.
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
13(1)(ia) of the Hindu Marriage Act,1955 (wrongly mentioned as
Section 9 of the Hindu Marriage Act in head-note and para 1 of the
petition) titled "Akash Mishra vs. Nandita Choudhary" pending in the
Court of Principal Judge, Family Court, Garidabad to a Court of
competent jurisdiction at Gurugram.
Though notice has been served upon the respondent but
no one is appearing on his behalf for the last two dates. Today also,
nobody is present to represent him.
2. Learned counsel for the petitioner has contended :-
i) that the parties were married on 11.12.2019 according to
Hindu rites and rituals.
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ii) that it is second marriage of the petitioner and she has
having a daughter from her first marriage and no child
was born out of this wedlock.
iii) that the petitioner-wife is living separately from the
respondent-husband since January 2022 and used to in
Gurugram in rented accommodation.
iv) that the petitioner is working in Amarican Express
Company and the respondent-husband is not paying
anything to her towards maintenance.
v) The respondent-husband has filed the petition under
Section 13(1)(ia) of the Hindu Marriage Act, which is
pending before the Principal Judge, Family Court,
Faridabad.
The proceedings arising out of petitions (1) under Section
12 of the Protection of Women from Domestic Violence
Act, 2005; and (2) a complaint dated 01.09.2022 bearing
diary No.3220695 dated 09.01.2022 addressed to the
SHO, Women Police Station, Sector 51, Gurugram, filed
by the petitioner-wife, are pending in the Courts/Police
Station having competent jurisdiction at Gurugram.
v) that the distance between place of residence of the
petitioner-wife i.e. Gurugram and the place of proceedings
under Section 13(1)(ia) of the Hindu Marriage Act, 1955
filed by the respondent-husband, pending before the
Principal Judge, Family Court, Faridabad, is about 40
kilometers of one side.
vi) that there is no proficient male member in the family of
the petitioner, who can accompany her to the Court of
proceedings at Faridabad.
3. It is inter alia on these grounds that petitioner prays for
transfer of the case, as detailed in para 1 above.
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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 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
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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. In view of the facts mentioned above and 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 13(1)(ia) of Hindu Marriage Act,1955,
bearing HMA/1000/2022 titled as 'Akash Mishra
vs. Nandita Choudhary', pending in the Court of
Principal Judge, Family Court, Faridabad is
transferred to a Court of competent jurisdiction at
Gurugram.
b) The ld. District Judge, Faridabad is directed to
transfer complete record pertaining to the aforesaid
case to District Judge, Gurugram.
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c) The parties are directed to appear before the District
& Sessions Judge, Gurugram on 23.12.2022.
d) The District Judge, Gurugram will assign the said
petition to the Court of competent jurisdiction.
8. The concerned Court at Gurugram 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.
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
Talwar; TA No. 1322 of 2022, Jaswinder Kaur v Gurvinderjeet
Singh; and TA No. 1323 of 2022, Usha Rani v Karmajit Singh.
Disposed of.
Pending application(s), if any, stands disposed of.
November 24, 2022 ( NIDHI GUPTA )
Vijay Asija JUDGE
Whether speaking/reasoned YES/NO
Whether Reportable YES/NO
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