Punjab-Haryana High Court

Sonia vs Devender on 28 September, 2022

TA No.905 of 2021 (O&M)
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     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                             TA No.905 of 2021 (O&M)
                                            Date of decision: 28.09.2022

Sonia
                                                             ....Petitioner
                                  Versus
Devender
                                                           ....Respondent

CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present: Mr. Chirag Wadhwa, Advocate for the petitioner.

Mr. Kartar Singh Malik-I, Advocate for the respondent.

ARVIND SINGH SANGWAN J. (Oral)

Prayer in this petition is for transfer of the petition filed

under Section 9 of the Hindu Marriage Act, pending in the Family

Court, Rohtak to the competent Court of jurisdiction at Karnal.

Vide order dated 24.09.2021, the following order was

passed:-

"This petition has been filed by the wife seeking the transfer of the petition filed under Section 9 of the Hindu Marriage Act, 1955, titled as "Devender vs. Sonia", pending in the Court of Additional Principal Judge, Family Court, Rohtak, to the Court of competent jurisdiction at Karnal.

The petitioner claims that she got married to the respondent on 29.01.2021 and they have been blessed with a child. She claims that presently, she is residing with her aged parents at Karnal and the distance between Rohtak and Karnal, is more than 130 Kms. The petitioner further claims that she cannot properly defend the petition at Rohtak.

The learned counsel representing the petitioner places reliance on the pendency of the petition filed under Section 125 Cr.P.C, at Karnal. The learned counsel contends that it will be very difficult for the petitioner to travel on each date of hearing.

Notice of motion for 29.10.2021."

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Counsel for the petitioner has argued that on account of a

matrimonial discord, the petitioner has filed a petition under Section

125 Cr.P.C. at Karnal.

Counsel for the petitioner has further submitted that the

respondent/husband has filed the petition under Section 9 of the Hindu

Marriage Act, as a counter-blast, before the Principal Judge, Family

Court, Rohtak.

Counsel for the petitioner has also argued that on account

of a petition filed by the respondent/husband, the petitioner is facing

great difficulty in prosecuting the said case as there is a distance of

about 130 Kms from Karnal to Rohtak.

Counsel for the petitioner has further contended that the

petitioner is having a minor child, who is living in her care and custody

and she is facing difficulty to defend the case as she has to travel from

Karnal to Rohtak.

Counsel for the petitioner 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 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."

Counsel for the petitioner has also relied upon the

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

Live Law (SC) 627, wherein the Hon'ble Supreme Court has observed

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."

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.

The only objection raised by counsel for the respondent is

that the petitioner is an educated woman and can maintain herself and

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also attend the Court proceedings at Rohtak, however, it is not disputed

that the minor son is residing with the petitioner/wife.

After hearing the counsel for the parties, considering the

fact that the petitioner/wife will have to bear the litigation expenses and

transportation 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 deem it appropriate to allow the present petition,

subject to the following conditions:-

1. The petition filed under Section 9 of the Hindu Marriage Act, pending before the Family Court, Rohtak will be transferred to the competent Court of jurisdiction at Karnal.

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

3. The Family Court, Rohtak is directed to transfer all the record pertaining to the aforesaid case to District Judge, Karnal.

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

5. The Family Court, Karnal 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.