Kanwaljit Kaur vs Vakeel Mohammad
2022 Latest Caselaw 11967 P&H

Citation : 2022 Latest Caselaw 11967 P&H
Judgement Date : 22 September, 2022

Punjab-Haryana High Court

Kanwaljit Kaur vs Vakeel Mohammad on 22 September, 2022

TA-450-2022                                                      -1-



       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                               TA-450-2022 (O&M)
                                               Date of decision: 22.09.2022

Kanwaljit Kaur
                                                                ....Petitioner



                                         Vs.

Vakeel Mohammad
                                                              ....Respondent

CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present:    Mr. N.S. Dandiwal, Advocate
            for the petitioner.

            None for the respondent.

                   *******

ARVIND SINGH SANGWAN, J. (Oral)

Prayer in this petition is for transfer of case under Section 281

of Muslim Act filed by the respondent-husband, pending before the Family

Court, Malout, District Sri Muktsar Sahib to the competent Court of

jurisdiction at Moga.

While issuing notice of motion, following order was passed by

this Court on 07.05.2022: -

"Learned counsel contends that the petitioner, who was

married to the respondent in 2011 and has an eight years old

son, was turned out from her matrimonial home on 14.07.2021

and thereafter is residing along with her son at Moga, where

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her son is studying, the petitioner has filed a case under the

Domestic Violence Act, which is pending adjudication at Moga

and the respondent is appearing in the said case, the petitioner

has no source of income and is not being paid any

maintenance by the respondent and now the respondent has

filed suit No. CS-316-2021, dated 23.11.2021, under Section

281, Muslim Act, for restitution of conjugal rights which is

pending before the learned Principal Judge, Family Court,

Malout which is at a distance of 120 KMS and that in the

circumstances the civil suit is liable to be transferred to the

Court of the learned Principal Judge, Family Court, Moga."

Learned counsel has relied upon the judgments Sumita Singh

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 has further relied upon N.C.V. Aishwarya Vs.

A.S. Saravana Karthik Sha, 2022 Live Law (SC) 627, wherein the

Hon'ble Supreme Court held as under: -

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"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.

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."

As per office report, the respondent is served, however, there is

no representation on his behalf.

It is well settled that while considering the transfer of a

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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 the petitioner-wife will have to bear the litigation expenses and

transportation expenses and in view of the judgments in 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

deem it appropriate to allow the present petition, subject to the following

conditions:-

1. The case under Section 281 of Muslim Act, pending before the Family Court, Malout, District Sri Muktsar Sahib will be transferred to the competent Court of jurisdiction at Moga.

2. The District Judge, Moga will assign the said petition to the competent Court of jurisdiction.

3. The Family Court, Malout, District Sri Muktsar Sahib is directed to transfer all the record pertaining to the aforesaid case to District Judge, Moga.

4. The parties are directed to appear before the Family Court, Moga within a period of 01 month from today.

5. The Family Court, Moga will make all the endeavour to refer the case before the Mediation and Conciliation Centre for

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exploring the possibility of amicable settlement between the parties.