Punjab-Haryana High Court

Jatinder Kuar vs Gurjinder Singh on 7 November, 2023

                                                      Neutral Citation No:=2023:PHHC:142197




                                             Neutral Citation No. : 2023:PHHC:142197
      TA-692-2023                                                      -1-


         IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

213
                                                         TA-692-2023
                                                         Decided on : 07.11.2023



Jatinder Kaur                                             . . . Applicant/Petitioner



                                        Versus


Gurjinder Singh                                                . . . Respondent



CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Gourav Geol, Advocate
         for the petitioner.

                                        ****

SANJAY VASHISTH, J. (Oral)

1. As per office report, notice sent to the respondent has been

received back served through his aunt(Tai). Despite service, none appeared

on behalf of the respondent.

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

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

HMA No.340 of 2021 filed by the respondent-husband under Section 9 of

Hindu Marriage Act, 1955 titled as "Gurjinder Singh Vs. Jatinder Kaur''

pending in the Court of Principal Judge, Family Court, SAS Nagar, Mohali

to any Court of competent jurisdiction at Fatehgarh Sahib.

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

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following grounds:-

i) That the petitioner-wife and respondent-husband got married on 03.03.2013 according to the sikh rites and ceremonies, however, out of the said wedlock, no issue is born.

ii) That petitioner-wife filed petition under Section 125 Cr.P.C. for claiming maintenance, which is pending before the Family Court, Fatehgarh Sahib (Annexure P-1). Petitioner-wife has also instituted a complaint under Section 12 read with Sections 17, 18, 19, 20 and 22 of the Protection of Women from Domestic Act, 2005, which is pending before learned Judicial Magistrate First Class, Fatehgarh Sahib (P-2). Petitioner-wife has also instituted a criminal complaint bearing FIR No.54 dated 29.04.2021 under Sections 406, 498-A IPC, registered at Police Station Mulepur, District Fatehgarh Sahib, whereby challan is yet to be presented.

iii) That traveling from Fatehgarh Sahib to Mohali, to and fro is a distance of around 70 kms, thus, causing extreme hardships to the petitioner-wife.

iv) That the petitioner-wife is not earning and is financially dependent on her parents. The petitioner wife is staying with her parents at Village Reona Niwan, P.S. Mulepur, Tehsil and District Fatehgarh Sahib 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:

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"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."

5. Further, Hon'ble the Apex Court in Rajani Kishor Pradeshi v.

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

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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 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 brother;

(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

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

allow the present petition with the following directions:

(i) The petition bearing HMA No.340 of 2021 filed by respondent-husband under Section 9 of the Hindu Marriage Act, 1955, titled as "Gurjinder Singh VS. Jatinder Kaur'' pending in the Court of learned Principal Judge, Family Court, SAS Nagar Mohali is transferred to a Court of competent jurisdiction at Fatehgarh Sahib.

(ii) The ld. Principal Judge Family Court, SAS Nagar Mohali is directed to transfer complete record pertaining to the aforesaid case to District Judge, Fatehgarh Sahib, by directing both the sides to appear before the Court of Ld. District Judge, Fatehgarh Sahib, on a particular date for further proceedings.

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

10. The concerned Court at Fatehgarh Sahib 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

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the present 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-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

(iv) 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 SAS Nagar Mohali, on each and every date of hearing.

AND

(v) The respondent-husband will bring a demand draft of Rs.25,000/- towards the litigation expenses of the petitioner to pursue the case at SAS Nagar Mohali in case the respondent opts to contest this petition.

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 parties before the

District Judge, Fatehgarh Sahib, as per the direction of District Judge, SAS

Nagar Mohali; 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

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the District Judges concerned through email. Petitioner through her counsel,

present in the Court, is also directed to ensure her appearance accordingly.

Disposed of.