Punjab-Haryana High Court
Murti vs Mala Ram Alias Ami Lal on 4 January, 2023
T.A.No. 1176 of 2022 (O&M) 1 202
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Transfer Application No. 1176 of 2022
Date of decision: 04.01.2023
Murti ..........Petitioner
vs
Mala Ram alias Ami Lal
...........Respondent
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. C.R. Narwal, Advocate
for the petitioner.
None for the respondent.
NIDHI GUPTA, J.(Oral)
1. Prayer in this petition filed by petitioner-wife is for
transfer of the petition filed by respondent-husband under Section
13(1) of the Hindu Marriage Act,1955 (for short 'the Act') titled
"Mala Ram versus Murti" pending in the Court of Principal Judge,
Family Court, Rohtak to a Court of competent jurisdiction at Hisar.
Though notice issued to the respondent has been
received with the report that he is not residing in the village but in the
mediation proceedings, the respondent has put in appearance before
the Mediator, Mediation Centre, Hisar and joined the proceedings.
Therefore, as the matter is in the knowledge of the respondent and he
is not appearing before this Court, accordingly, this petition is being
decided in his absence.
2. Learned counsel for the petitioner has contended :-
i) That the parties were married in June 1989 according to
Hindu rites and rituals.
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ii) That two daughters and one son were born out of this
wedlock, who all are presently married and settled.
iii) That the petitioner-wife (about 50 years of age), is living
separately from the respondent-husband (about 51 years
of age), since the last six years and living with her parents
at their mercy at Hisar.
iv) That the petitioner is unemployed, having no source of
income and totally dependent upon her parents and the
respondent-husband, who is working as Mali-cum-
Chowkidar in Bal Bhawan, Rohtak, and besides this he is
earning more than Rs.50,000/- per month from agriculture
and is not paying anything to her towards maintenance.
v) The respondent-husband has filed the petition under
Section 13(1) of the Hindu Marriage Act, which is
pending before the Principal Judge, Family Court, Rohtak.
vi) The proceedings arising out of petition under Section 125
Cr.P.C. filed by the petitioner-wife, are pending in the
Courts having competent jurisdiction at Hisar.
vii) That the distance between place of residence of the
petitioner-wife i.e. Hisar and the place of proceedings
under Section 13(1) of the Hindu Marriage Act, 1955 filed
by the respondent-husband, pending before the Principal
Judge, Family Court, Rohtak, is about 120 kilometers of
one side.
viii) That there is no proficient male member in the family of
the petitioner, who can accompany her to the Court of
proceedings at Rohtak.
ix) That the respondent just to harass the petitioner, filed
petition under Section 13(1) of the Act at Rohtak, rather,
he is resident of Village Arya Nagar, Hisar having his
own house and agricultural land in that village. The fact
about his residential address is also proved in his own
petition under Section 13(1) of the Act, wherein, in the
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memo of parties he has shown himself to be resident of
Village Arya Nagar, District Hisar.
3. It is inter alia on these grounds that petitioner prays for
transfer of the case, as detailed in para 1 above.
4. Vide order dated 29.9.2022 passed by Co-ordinate Bench
of this Court, the matter was referred to the Mediation and Conciliation
Centre, Hisar, where the parties remained present but as per report of
the Mediator dated 31.10.2022, despite best efforts, the mediation has
failed.
5. I have heard learned counsel for the petitioner.
6. 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 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."
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7. 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."
8. 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 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.
9. In view of the facts mentioned above and 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:-
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a) The petition filed by respondent husband under
Section 13(1) of Hindu Marriage Act,1955, titled as
'Mala Ram vs. Murti', pending in the Court of
Principal Judge, Family Court, Rohtak is
transferred to a Court of competent jurisdiction at
Hisar.
b) The ld. District Judge, Rohtak is directed to transfer
complete record pertaining to the aforesaid case to
District Judge, Hisar.
c) The parties are directed to appear before the District
& Sessions Judge, Hisar, on 07.02.2023.
d) The District Judge, Hisar will assign the said
petition to the Court of competent jurisdiction.
10. The concerned Court at Hisar 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.
11. The Court concerned, where the litigation pending
between the parties, will accommodate them with one date in one
calendar month.
12. I am supported by the 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.
Disposed of.
Pending application(s), if any, stands disposed of.
January 04, 2023 ( NIDHI GUPTA )
Vijay Asija JUDGE
Whether speaking/reasoned YES/NO
Whether Reportable YES/NO
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