Roji vs Jagwinder Singh And Others
2023 Latest Caselaw 8402 P&H

                                                       Neutral Citation No:=2023:PHHC:078980



                                                               2023:PHHC:078980
T.A.No. 700 of 2023 (O&M)                       1                           110




              IN THE HIGH COURT OF PUNJAB AND HARYANA
                           AT CHANDIGARH

                                    Transfer Application No. 700 of 2023
                                            Date of decision:-29.05.2023


Roji

                                                      ..........Petitioner

                               vs

Jagwinder Singh and others

                                                      ...........Respondents

CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA

Present:- Mr. Pardeep Singh Mirpur, Advocate for the petitioner.

NIDHI GUPTA, J.(Oral)

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

transfer of the petition filed by respondent No.1-husband under

Section 27 of the Special Marriage Act, (for short 'the Act') titled

"Jagwinder Singh vs. Roji and another" (Annexure P-1) pending in

the Court of Principal Judge, Family Court, Sri Muktsar Sahib to a

Court of competent jurisdiction at Bathinda.

2. Learned counsel for the petitioner submits :-

i) That the parties were married on 15.02.2015 according to Christian rites and rituals.

ii) That a male child was born out of this wedlock, who is around 5 years of age and is in the care and custody of the petitioner.

iii) That the petitioner-wife is living separately from the respondent-husband and living with her parents at their mercy at Bathinda.

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iv) That the petitioner is unemployed, having no source of income and totally dependent upon her parents and the respondent-husband is not paying anything to her towards maintenance.

v) That the proceedings arising out of FIR No.116 dated 25.06.2019, under Sections 498-A, 406, 323, 506 and 34 IPC, registered at Police Station Lambi against the respondent No.1, lodged by the petitioner-wife, are pending in the Courts having competent jurisdiction at Gidderbaha.

vi) That the distance between place of residence of the petitioner-wife i.e. Bathinda and the place of proceedings under Section 27 of the Act, filed by the respondent No.1-husband, pending before the Principal Judge, Family Court, Sri Muktsar Sahib, is about 60 kilometers on one side.

vii) That there is no proficient male member in the family of petitioner who can accompany her to the Court of proceedings at Sri Muktsar Sahib as her father is suffering from old age related diseases, mother is old aged house maker and there are four other sisters, whose responsibility is also on her old aged parents.

3. It is inter alia on these grounds that petitioner prays for

transfer of the case, as detailed in para 1 above.

4. I have heard learned counsel for the petitioner.

5. Besides the facts as noticed hereinabove, 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, 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

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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."

6. 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."

7. 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

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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.

8. After going through the entire paper-book, 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 filed by respondent husband under Section 27 of Act, bearing No. DMC/918/2021 titled as 'Jagwinder Singh vs. Roji and another', pending in the Court of Principal Judge, Family Court, Sri Muktsar Sahib is transferred to a Court of competent jurisdiction at Bathinda.

b) The ld. District Judge, Sri Muktsar Sahib is directed to transfer complete record pertaining to the aforesaid case to District Judge, Bathinda.

c) The parties are directed to appear before the District & Sessions Judge, Bathinda on 07.07.2023.

d) The District Judge, Bathinda will assign the said petition to the Court of competent jurisdiction.

9. The concerned Court at Bathinda will make all endeavour

to refer the case before the Mediation and Conciliation Centre for

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exploring the possibility of some amicable settlement between the

parties.

10. The Court concerned, where the litigation is pending

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

calendar month.

11. However, liberty is granted to the respondents to revive

this petition, if he intends to contest the same, provided that:-

(a) The respondent-husband 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-husband will file an affidavit giving undertaking to pay Rs.1,000/- per day, to the petitioner for attending the Court proceedings at District Courts, Sri Muktsar Sahib on each and every date of hearing.

(c) The respondent-husband will bring a demand draft of Rs.25,000/-, drawn in favour of petitioner, towards the litigation expenses to pursue the case at District Sri Muktsar Sahib in case the respondent opts to contest this petition.

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.

13. 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

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parties before the District Judge, Bathinda on 07.07.2023, it is directed

that a copy of this order be sent to the respondent 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.

As regards prayer of the petitioner for transfer of

proceedings under FIR No.116 dated 25.6.2019 bearing CIS

No.CHI/117/2019 pending in the Court of learned Sub Divisional

Judicial Magistrate, Gidderbaha (Annexure P-2), the petitioner is at

liberty to file appropriate application in accordance with law for

transfer of the same.

Disposed of.

Pending application(s), if any, stands disposed of.

May 29, 2023                                        ( NIDHI GUPTA )
Vijay Asija                                              JUDGE

Whether speaking/reasoned             YES/NO
Whether Reportable                    YES/NO

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