Punjab-Haryana High Court

Aarti Bansal Alias Aarti Gupta vs Sanjay Gupta on 6 November, 2023

                                                                      Neutral Citation No. : 2023:PHHC:141097
                               TA-1443-2023 (O&M)                                                   -1-
                                     IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                  AT CHANDIGARH
                      118
                                                                                 TA-1443-2023 (O&M)
                                                                                 Decided on : 06.11.2023

                      Aarti Bansal @ Aariti Gupta
                                                                                  . . . Applicant/Petitioner
                                                              Versus
                      Sanjay Gupta
                                                                                           . . . Respondent

                      CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH

                      PRESENT: Mr. Kanwar Arun Singh, Advocate
                               for the petitioner.
                                                   ****

                      SANJAY VASHISTH, J. (Oral)

1. Present transfer application has been filed by the petitioner -

wife, under Section 24 of CPC, for seeking transfer of the petition bearing

No. HMA/110/2022, filed by the respondent - husband, under Section 11 of

the Hindu Marriage Act, 1955 (Act XXV of 1955), titled as, "Sanjay Gupta

vs. Aarti Bansal" pending in the Court of Principal Judge, Family Court,

Ambala to any Court of competent jurisdiction at Ludhiana.

2. The present transfer petition has been filed, inter alia, on the

following grounds:-

i) That the petitioner-wife and respondent-husband got married on 28.02.2020, at Ludhiana, according to the Hindu rites and ceremonies.

ii) That out of the said wedlock, no child was born. However, respondent was earlier married, and out of that wedlock, he has two children, who after the divorce are under the care and custody of his earlier wife.

iii) That the petitioner-wife is 10+2 pass and is not earning anything, while the respondent-husband is running a shoe shop along with his uncle and also doing online business, and thus, JAWALA RAM 2023.11.07 12:01 I attest to the accuracy and integrity of this document Neutral Citation No. : 2023:PHHC:141097 TA-1443-2023 (O&M) -2-

he earns a handsome amount of Rs.1,00,000/- to 1,20,000/- p.m.

iv) That traveling from Ambala to Ludhiana, is a distance of around 110 kms (one side), which takes around 4-5 hours, thus, causing extreme hardships to the petitioner-wife.

v) That the petitioner-wife is financially dependent on parents, who also remain sick most of the time, due to their age and other ailments, and lacks convenient transportation options, thus, is compelled to rely on public transit, resulting in significant hardships.

vi. That a complaint filed by the petitioner-wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005, bearing No. COMA-7427/2022 (Aarti Gupta @ Aarti Bansal vs. Sanjay Gupta), is also pending consideration before the Illaqa Magistrate, Ludhiana. Next date of hearing in the said case is fixed for 23.11.2023.

Thus, prays for transferring of petition filed by the respondent- husband at Amabla to Ludhiana.

3. I have heard learned Counsel for the petitioner.

In the facts and circumstances similar to the present case, in

paragraph Nos. 9 & 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 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 JAWALA RAM 2023.11.07 12:01 I attest to the accuracy and integrity of this document Neutral Citation No. : 2023:PHHC:141097 TA-1443-2023 (O&M) -3-

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."

4. Further, Hon'ble the Apex Court in Rajani Kishor Pradeshi vs

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."

5. However, to avoid any misuse of the lenient view by the female

litigants, Hon'ble the Apex Court in Anindita Das vs. 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 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 JAWALA RAM 2023.11.07 12:01 I attest to the accuracy and integrity of this document Neutral Citation No. : 2023:PHHC:141097 TA-1443-2023 (O&M) -4-

the women."

6. Thus, this Court is of the view that while adjudicating a transfer

petition initiated by the wife 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(s) between the parties including criminal cases, if any;

(h) Accessibility of the location from where the wife resides to the court where the case is pending;

(i) 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.

7. This court is of the opinion that, for the purpose of deciding the

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.

8. 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) and Anindita Das's case (supra), this Court deems it appropriate to

allow the present petition subject to the following conditions:

(i) The petition filed by respondent - husband under Section JAWALA RAM 11 of Hindu Marriage Act, 1955, bearing No. 2023.11.07 12:01 I attest to the accuracy and integrity of this document Neutral Citation No. : 2023:PHHC:141097 TA-1443-2023 (O&M) -5-

HMA/110/2022 titled as "Sanjay Gupta vs. Aarti Bansal Kaur", pending in the Court of Principal Judge, Family Court, Ambala is transferred to a Court of competent jurisdiction at Ludhiana.

(ii) The Ld. District Judge, Ambala is directed to transfer complete record pertaining to the aforesaid case to District Judge, Ludhiana, by directing both the sides to appear before the Court of Ld. District Judge, Ludhiana, on a particular date for further proceedings.

(iii) The District Judge, Ludhiana will assign the said petition to the Court of competent jurisdiction.

9. The concerned Court at Ludhiana shall diligently strive to

amicably resolve the marital discord between the parties by referring the

matter to the Mediation and Conciliation Centre.

10. The Court, where the matter is to be assigned after transfer will

accommodate the parties to the lis with at least, one day in a calendar month.

11. However, liberty is granted to the respondent-husband to revive

the petition, if so advised, to contest the same, provided that:

(I) 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

(ii) If the respondent husband is suffering from any substantial physical or mental disability or ailment.

OR

(iii) The respondent 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.

JAWALA RAM AND 2023.11.07 12:01 I attest to the accuracy and integrity of this document Neutral Citation No. : 2023:PHHC:141097 TA-1443-2023 (O&M) -6-

(iv) The respondent will file an affidavit giving undertaking to pay Rs.1,000/- per day, to the petitioner for attending the Court proceedings at Ambala, on each and every date of hearing.

AND

(v) The respondent will bring a demand draft of Rs.25,000/-

towards the litigation expenses of the petitioner to pursue the case at Ambala in case the respondent opts to contest this petition.

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, Ludhiana, as per the direction of District Judge, Ambala; it is

also 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 email. Petitioner through her counsel, present in the

Court, is also directed to ensure her appearance accordingly.