Punjab-Haryana High Court
Mohini Dhiman vs Manav Bimbraw on 7 September, 2022
TA-1040-2022 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
112
TA-1040-2022 (O&M)
Date of decision: 07.09.2022
Mohini Dhiman ...Petitioner
Versus
Manav Bimbraw ...Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present:- Mr. Anuj Kumar Sharma, Advocate
for the petitioner.
ARVIND SINGH SANGWAN, J. (Oral)
Prayer in this petition is for transfer of the petition filed by the
respondent-husband under Section 9 of the Hindu Marriage Act, 1955,
pending before the Family Court, Fatehgarh Sahib to the competent Court of
jurisdiction at Chandigarh.
Learned counsel for the petitioner has argued that on account of
a matrimonial discord, the petitioner is residing at Chandigarh and in order
to harass the petitioner, the respondent-husband has filed the present
petition under Section 9 of the Hindu Marriage Act at Fatehgarh Sahib. It is
further submitted that the petitioner is facing great difficulty in prosecuting
the said case, as there is a distance of about 65 Kms between the aforesaid
two places.
Learned counsel for the petitioner further submits that the
petitioner is having a minor child, who is living in her care and custody,
therefore, it is very difficult for her to defend the said case at Fatehgarh
Sahib.
Learned counsel has relied upon the judgments Sumita Singh
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Vs. Kumar Sanjay, 2002 SC 396 and Rajani Kishor Pardeshi Vs. Kishor
Babulal Pardeshi, 2005(12) SCC 237, wherein the Hon'ble Supreme Court
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."
Learned counsel for the petitioner has further relied upon 2022
Live Law (SC) 627 N.C.V. Aishwarya vs. A.S. Saravana Karthik Sha,
wherein 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
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as to avoid multiplicity in trial of the same issues and
conflict of decisions."
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
family condition of the wife, custody of the minor child, economic condition
of the wife, her physical health and earning capacity of the husband and
most important, 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.
After hearing the counsel for the petitioner, 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 view
of the fact that in case notice of motion is issued, even the
respondent/husband has to bear the litigation expenses and in also in view
of the judgments rendered in Sumita Singh's case, Rajani Kishor
Pardeshi's case as well as N.C.V. Aishwarya's case (supra), this Court
deems it appropriate to allow the present petition, with the following
directions:-
(i) The petition filed under Section 9 of the Hindu
Marriage Act, pending before the Family Court,
Fatehgarh Sahib will be transferred to the
competent Court of jurisdiction at Chandigarh.
(ii) The District Judge, Chandigarh will assign the
said petition to the competent Court of
jurisdiction.
(iii) The Family Court at Fatehgarh Sahib is directed
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to transfer all the record pertaining to the
aforesaid case to District Judge, Chandigarh.
(iv) The parties are directed to appear before the trial
Court at Chandigarh within a period of 01 month
from today.
(v) The Courts concerned, where the cases are
pending between the parties, will accommodate
them with one date in a calendar month.
However, liberty is granted to the respondent-husband to revive
this petition, if he intends to contest the same, provided that:-
(i) The respondent will clear all the arrears of
maintenance amount, if any, in terms of the
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.
(ii) The respondent will file an affidavit giving
undertaking to pay Rs.1,000/- per day, to the
petitioner for attending the Court proceedings at
Fatehgarh Sahib, on each and every date of
hearing.
(iii) The respondent will bring a demand draft of
Rs.25,000/- towards the litigation expenses of the
petitioner to pursue the case at Fatehgarh Sahib,
in case the respondent opts to contest this
petition.
07.09.2022 (ARVIND SINGH SANGWAN)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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