Deepansha vs Abhishek
2023 Latest Caselaw 1503 P&H

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     IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                                   TA No.101-2023 (O&M)
                                               Date of decision: 24.01.2023


Deepansha                                                   ...Petitioner(s)

                         Vs.

Abhishek                                                    ...Respondent(s)



CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA

Present:- Mr. Sumit S. Bairagi, Advocate for the petitioner.

           ***

NIDHI GUPTA, J.(Oral)

CM-1451-CII-2023

This is an application under Section 151 of CPC for granting

exemption from filing true typed/certified copy of Annexure P1 and

permission to place on record true translated/photocopy of the same.

After going through the contents of the application, the same

is allowed subject to just all exceptions

MAIN CASE

1. Prayer in this petition filed by petitioner-wife is for transfer

of petition bearing No.DMC/276/2022 filed by respondent-husband

under Section 13-A of the Hindu Marriage Act, titled "Abhishek vs.

Deepansha" pending in the Court of Principal Judge, Family Court,

Fatehgarh Sahib, to a Court of competent jurisdiction at Kurukshetra.

2. Learned counsel for the petitioner, inter alia, submits that:

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i) that the marriage of the parties was earlier solemnized on 17.10.2019 at Arya Samaj Mandir, Delhi and thereafter on 25.10.2019 as per Hindu rites and ceremonies at Kurukshetra;

ii) that one child was born out of the wedlock on 01.11.2020;

iii) that the petitioner along with the child is living at Kurukshetra;

iv) that distance between place of residence and place of proceedings is about 110 kms. (one side);

v) that the petitioner is living at the mercy of her aged parents and therefore, there is none who can accompany her to such a vast distance along with her minor child;

vi) that following cases are pending at Kurukshetra:-

a) petition under Section 125 of the Code of Criminal Procedure;

b) FIR No.116 dated 28.02.2021.

3. I have heard learned counsel for the petitioner.

4. The legal position 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 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

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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 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

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."

6. Even this Court in number of cases has followed the aforesaid

principle of law. Accordingly, it is well settled that while considering the

transfer of a matrimonial dispute/case, at the instance of the wife, the

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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.

7. After going through the entire paperbook, 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 case, notice of motion is issued, even the

respondent-husband has to bear the litigation 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

petition, subject to the following conditions:-

a) The petition bearing No.DMC/276/2022 filed by

respondent-husband under Section 13-A of the Hindu

Marriage Act, titled "Abhishek vs. Deepansha" pending in the

Court of Principal Judge, Family Court, Fatehgarh Sahib, is

transferred to a court of competent jurisdiction at

Kurukshetra.

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b) The learned District Judge, Fatehgarh Sahib is directed to

transfer complete record pertaining to the aforesaid case to

District Judge, Kurukshetra.

c) The parties are directed to appear before the District &

Sessions Judge, Kurukshetra on 17.02.2023.

d) The District Judge, Kurukshetra will assign the said

petition to the Court of competent jurisdiction.

8. The concerned Court at Kurukshetra 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.

9. The Court concerned, where the litigation pending between

the parties, will accommodate them with one date in one calendar

month.

10. However, liberty is granted to the respondent to revive this

petition, 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 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.

(b) The respondent will file an affidavit giving

undertaking to pay Rs.1,000/- per day, to the petitioner

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for attending the Court proceedings at District Court,

Fatehgarh Sahib on each and every date of hearing.

(c) The respondent will bring a demand draft of

Rs.25,000/-, drawn in favour of petitioner, towards the

litigation expenses to pursue the case at Fatehgarh Sahib

in case the respondent opts to contest this petition.

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 Nitin

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 noticed above, since the petition is being disposed

of without issuing notice to the respondent, accordingly, in these

peculiar circumstances, in order to ensure appearance of the parties

before the District Judge, Kurukshetra on 17.02.2023, 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. Petitioner through her counsel, present in

the Court, is directed to ensure her appearance accordingly.

Disposed of.

Pending application(s) if any also stand(s) disposed of.

24.01.2023                                  (Nidhi Gupta)
Sunena                                         Judge


Whether speaking/reasoned: Yes/No
Whether reportable:       Yes/No

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