Punjab-Haryana High Court
Kamaljit Kaur vs Jatinder Pal Singh on 5 December, 2023
Neutral Citation No. : 2023:PHHC: 154786
TA-1565-2023 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
103
TA-1565-2023 (O&M)
Decided on : 05.12.2023
Kamaljit Kaur . . . Applicant/Petitioner
Versus
Jatinder Pal Singh . . . Respondent
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Sumit Dua, Advocate
for the applicant/petitioner.
****
SANJAY VASHISTH, J. (Oral)
1. Present transfer application has been filed by the
applicant/petitioner - wife, under Section 24 of CPC, for seeking transfer of the
proceedings of the petition under Section 13 of the Hindu Marriage Act, 1955
bearing No.HMA/2108/2022 titled as "Jatinder Pal Singh vs. Kamaljeet Kaur"
which is decreed ex parte by the Court of Principal Judge, Family Court,
Amritsar and application bearing No.CM/705/2023 for setting aside the said ex
parte decree, filed by the applicant-wife is pending consideration before the
same Court at Amritsar. Transfer has been sought from the Family Courts at
Amritsar to any Court of competent jurisdiction at Jalandhar.
2. The present transfer petition has been filed, inter alia, on the
following grounds:-
i) That marriage of the applicant-petitioner/wife and respondent-
husband took place on 01.12.2007, as per Sikh rites and
ceremonies at Tangra near Beas, District Amritsar.
ii) That out of the said wedlock, one female child namely Avneet
Kaur now aged 12 years was born and is residing with the
applicant-wife and studying in school at Jalandhar.
iii) That applicant-petitioner/wife has lodged one petition under
Section 125 Cr.P.C. for grant of maintenance which is pending
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before learned JMIC, Jalandhar in which learned Court has
ordered Rs.8,000/- interim maintenance to the petitioner-wife but
till date, nothing is paid. Petitioner-wife has also filed execution
petition for compliance of the interim order granted under Section
125 Cr.P.C. She has also lodged one complaint under Domestic
Violence Act against the respondent and his mother which is also
pending before learned Principal Judge, Family Court at
Jalandhar.
iv) That petitioner-wife is having no source of income and is
completely dependent upon the mercy of her parents.
v) That respondent has filed petition under Section 13 of the Hindu
Marriage Act, 1955 bearing No.HMA/2108/2022 titled as
"Jatinder Pal Singh vs. Kamaljeet Kaur" is decreed ex parte and
application for setting aside the ex parte decree is pending
consideration before the Court of Principal Judge, Family Court,
Amritsar.
vi) That petitioner-wife is residing with her parents at parental house
and traveling from Jalandhar to Amritsar is a distance of 90
kilometres (one side), thus, causing extreme hardships to the
applicant-petitioner/wife as well as minor child.
vii) That the petitioner-wife is financially dependent on her parents
and lacks convenient transportation options, thus, is compelled to
rely on public transit, resulting in significant hardships.
4. I have heard learned Counsel for the petitioner, and gone through
the material available on record.
In the facts and circumstances similar to the present case, in
paragraph Nos.9 and 10 of the judgment rendered in the case of N.C.V.
Aishwarya v. A.S. Saravana Karthik Sha, AIR 2022 SC 4318, Hon'ble the
Apex 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
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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, Hon'ble the Apex Court in Rajani Kishor
Pradeshiv.Kishor Babulal Pardeshi, (2005) 12 SCC 237, 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 ordinary be
allowed, taking into consideration their convenience and the Courts should
desist from putting female litigants under undue hardships."
6. However, to avoid any misuse of the lenient view by the female
litigants, Hon'ble the Apex Court in Anindita Das v. Srijit Das, (2006) 9 SCC
197,has also cautioned that the Courts should ensure that such leniency given to
the female litigants should not be misused. Relevant Paragraph 3 of the
aforesaid judgment says as under:
"3. Even otherwise, it must be seen that at one stage this
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Court was showing leniency to ladies. But since then it has been
found that a large number of transfer petitions are filed by
women taking advantage of the leniency taken by this Court. On
an average at least 10 to 15 transfer petitions are on Board of
each Court on each admission day. It is, therefore, clear that
leniency of this Court is being misused by the women."
7. Thus, this Court is of the view that while adjudicating a transfer
petition, in the context of a matrimonial dispute, the Court must take into
account a comprehensive array of the following factors:-
(a) Economic condition and earning capacity of the parties i.e.
husband and wife;
(b) Social standing of the wife and her dependency on her
parents;
(c) Custody of any minor children involved;
(d) Education of the children, if any;
(e) Physical well-being of both, i.e. wife and husband;
(f) Pending litigation between the parties including criminal
cases, if any;
(g) Accessibility of the location i.e. from where the wife
resides to the court where the case is pending; and
(h) Availability of convenient commuting options
Undoubtedly, only a harmonious consideration of all these vital
aspects would ensure a just and equitable decision in such cases.
8. This court is of the opinion that, for the purpose of deciding the
present transfer petition, it is not necessary to issue notice to the respondent-
husband. Otherwise, both the parties would be burdened with litigation costs
and transportation expenses, which shall be taxing for both the sides.
9. Thus, applying the principles of law, laid down by Hon'ble the
Apex Court in N.C.V Aishwarya's case (supra), Rajani Kishor's case (supra)
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and Anindita Das's case (supra), this Court deems it appropriate to allow the
present petition with the following directions:-
(i) The petition filed by the respondent-husband under Section
13 of the Hindu Marriage Act, 1955 bearing
No.HMA/2108/2022 titled as "Jatinder Pal Singh vs.
Kamaljeet Kaur" along with ex parte decree passed by the
Court of Principal Judge, Family Court, Amritsar and all
other connected proceedings including the application for
setting aside the ex parte proceedings; is transferred to the
Court of competent jurisdiction at Jalandhar.
(ii) The ld. District Judge, Amritsar is directed to transfer
complete record pertaining to the aforesaid case to District
Judge, Jalandhar, by directing both the sides to appear
before the Court of Ld. District Judge, Jalandhar, on a
particular date for further proceedings.
(iii) The District Judge, Jalandhar will assign the said petition to
the Court of competent jurisdiction.
10. The concerned Court at Jalandhar shall diligently strive to
amicably resolve the marital discord between the parties by referring the matter
to the Mediation and Conciliation Centre.
11. The Court, where the matter is to be assigned after transfer, will
accommodate the parties to the lis with at least, one date in a calendar month.
12. However, liberty is granted to the respondent-husband to revive
the present petition, if so advised, to contest the same, provided that:
(i) The respondent-husband will clear all arrears of
maintenance amount, if any, in terms of a 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, or under any other law.
AND
(ii) The respondent-husband will file an affidavit giving
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undertaking to pay Rs.1,000/- per day, to the petitioner for
attending the Court proceedings at Amritsar, on each and
every date of hearing.
AND
(iii) The respondent-husband will bring a demand draft of
Rs.25,000/- towards the litigation expenses of the petitioner
to pursue the case at Amritsar in case the respondent opts to
contest this petition.
OR
(iv) If the petitioner-wife has concealed any material fact or
aspect while filing the current transfer application, with a
purpose to mislead the Court for seeking transfer of the
case.
OR
(v) If the respondent-husband is suffering from any substantial
physical or mental disability or ailment.
13. For compliance of the order passed by this Court, Registry is
directed to transmit copies of this order forthwith to learned District Judge,
Jalandhar and learned District Judge, Amritsar, through email(s) as well.
Petition stands disposed of in above terms.
(SANJAY VASHISTH)
JUDGE
December 05, 2023
Lavisha
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
