Punjab-Haryana High Court
Shaina Kapoor vs Manik Kapoor on 18 April, 2023
Neutral Citation No:=2023:PHHC:055413
2023:PHHC:055413 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
TA No.469-2023
Date of decision: 18.04.2023
Shaina Kapoor ...Pe..oner(s)
Vs.
Manik Kapoor ...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Varun Puri, Advocate and
Mr. Shubham Bhalla, Advocate
for the pe oner.
***
NIDHI GUPTA, J.(Oral)
Prayer in this pe on filed by pe oner-wife is for transfer of
pe on filed by respondent-husband under Sec on 13(1) of the Hindu
Marriage Act, 1955 bearing No.191 of 2023 tled as "Manik Kapoor Vs.
Shaina Kapoor" pending in the Court of Principal Judge, Family Court,
Amritsar, to a Court of competent jurisdic on at Pathankot.
2. Learned counsel for the pe oner, inter alia, submits:
i) that the par es were married on 07.07.2019 according
to Hindu rites and rituals;
ii) that a son was born out of the wedlock on
20.05.2020;
iii) that the pe oner along with the child is living at
Pathankot;
iv) that distance between place of residence and place of
proceedings is about 120 kms. (one side);
v) that the pe oner has no source of income and she is
living at the mercy of her parents. Father of the
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pe oner is suffering from various ailments and is bed
ridden;
vi) that following cases are pending:
a) applica on for maintenance under Sec on 125
Cr.P.C. is pending at Pathankot;
b) FIR No.125 dated 22.05.2021 under Sec ons
498-A, 324, 323, 34 and 506 IPC and Sec on 326,
406 and 120-B IPC (added later on) at Police
Sta on Ranjit Avenue, Amritsar.
3. I have heard learned counsel for the pe oner.
4. The legal posi on 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
sec on 24 of the Code of Civil Procedure is that the
ends of jus ce should demand the transfer of the
suit, appeal or other proceeding. In matrimonial
maBers, wherever Courts are called upon to consider
the plea of transfer, the Courts have to take into
considera on the economic soundness of both the
par es, the social strata of the spouses and their
behavioural paBern, their standard of life prior to the
marriage and subsequent thereto and the
circumstances of both the par es in eking out their
livelihood and under whose protec ve 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.
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10. Further, when two or more proceedings are
pending in different Courts between the same par es
which raise common ques on 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 mul plicity 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
applica on, the Courts are required to give more weightage and
considera on to the convenience of the female li gants and transfer of
legal proceedings from one Court to another should ordinarily be
allowed, taking into considera on their convenience and the Courts
should desist from puGng female li gants under undue hardships."
6. Even this Court in number of cases has followed the aforesaid
principle of law. Accordingly, it is well seBled that while considering the
transfer of a matrimonial dispute/case, at the instance of the wife, the
Court is to consider the family condi on of the wife, the custody of the
minor child, economic condi on 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, connec vity of the place to and fro from her
place of residence as well as bearing of the li ga on charges and
travelling expenses.
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7. AJer going through the en re paperbook, considering the
fact that issuance of no ce to the respondent has the consequences of
staying further proceedings before the trial Court, otherwise the
pe oner-wife will have to bear the li ga on expenses and
transporta on expenses and in case, no ce of mo on is issued, even the
respondent-husband has to bear the li ga on 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
pe on, subject to the following condi ons:-
a) The pe on filed by respondent-husband under Sec on
13(1) of the Hindu Marriage Act, 1955 bearing No.191 of
2023 tled as "Manik Kapoor Vs. Shaina Kapoor" pending in
the Court of Principal Judge, Family Court, Amritsar, is
transferred to a Court of competent jurisdic on at
Pathankot.
b) The learned District Judge, Amritsar is directed to transfer
complete record pertaining to the aforesaid case to District
Judge, Pathankot.
c) The par es are directed to appear before the District &
Sessions Judge, Pathankot on 29.05.2023.
d) The District Judge, Pathankot will assign the said
pe on to the Court of competent jurisdic on.
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8. The concerned Court at Pathankot will make all endeavour to
refer the case before the Media on and Concilia on Centre for
exploring the possibility of some amicable seBlement between the
par es.
9. The Court concerned, where the li ga on pending between
the par es, will accommodate them with one date in one calendar
month.
10. However, liberty is granted to the respondent to revive this
pe on, 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 pe on filed by the
pe oner either under Sec on 125 Cr.P.C. or Sec on 12
of the Domes c Violence Act or Sec on 24 of the Hindu
Marriage Act.
(b) The respondent will file an affidavit giving
undertaking to pay Rs.1,000/- per day, to the pe oner
for aBending the Court proceedings at District Court,
Amritsar on each and every date of hearing.
(c) The respondent will bring a demand draJ of
Rs.25,000/-, drawn in favour of pe oner, towards the
li ga on expenses to pursue the case at Amritsar in case
the respondent opts to contest this pe on.
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11. I am supported in the above by decisions rendered by a Co-
ordinate Bench of this Court in TA No. 1315/2022, Rohini Arora v Ni.n
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 no ced above, since the pe on is being disposed
of without issuing no ce to the respondent, accordingly, in these
peculiar circumstances, in order to ensure appearance of the par es
before the District Judge, Pathankot on 29.05.2023, it is directed that a
copy of this order be sent to the respondent(s) through registered post,
besides sending a copy of this order to the District Judges concerned
through e-mail. Pe oner through her counsel, present in the Court, is
directed to ensure her appearance accordingly.
Disposed of.
18.04.2023 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:055413
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