Punjab-Haryana High Court
Ramesh Devi vs Sanjay on 24 November, 2023
Neutral Citation No:=2023:PHHC:150220
Neutral Citation No.: 2023:PHHC:150220
TA-1529-2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
109 TA-1529-2023
Decided on: 24.11.2023
Ramesh Devi
...Applicant/Petitioner
Versus
Sanjay
...Respondent
CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. Jatin Kaushal, Advocate for
Mr. Arvind Sethi, Advocate
for the Applicant/petitioner.
****
SANJAY VASHISTH, J. (Oral)
1. Present transfer application, under Section 24 CPC, has been
filed by the petitioner-wife, for seeking transfer of the petition, filed by the
respondent-husband, under Section 9 of the Hindu Marriage Act, 1955,
titled as "Sanjay Vs. Ramesh Devi", presently pending in the Court of
Learned Principal Judge, Family Court, Ganaur, to any Court of competent
jurisdiction at Kaithal.
2. The present transfer petition has been filed, inter alia, on the
following grounds:-
i) Petitioner-wife and respondent-husband got married on
07.12.2008, at Kaithal, according to the Hindu rites and
ceremonies.
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ii) Out of the said wedlock, two children, namely Kinjan
(daughter) and Aarav (son) were born, now aged 13 years and 7
years respectively, who are minor and staying/residing with the
petitioner and looked after by their grand parents.
iii) Petitioner wife has filed a complaint against the respondent-
husband bearing FIR No.319 dated 20.09.2011, under Sections
323, 406 and 498-A IPC, registered at Police Station City
Kaithal. Petitioner wife has also filed a petition under Section
125 (3) of Cr.P.C., which was decided by learned Family Court
Kaithal vide order dated 08.05.2019, but an application for
releasing the amount is pending before the Family Court,
Kaithal for 02.12.2023 whereby conditional warrants against
the respondent was issued.
iv) Traveling from Ganaur to Kaithal, is a distance of around 124
Kms (one side), which takes around 3 hours, thus, causing
extreme hardships to the petitioner-wife as well as the minor
children.
v) Petitioner-wife is financially dependent on her parents, and
lacks convenient transportation options, thus, is compelled to
rely on public transit, resulting in significant hardships.
vi) Financial condition of the parental home of the petitioner-wife
is also not sound, and her parental family lives in a hand to
mouth condition.
3. I have heard learned counsel for the petitioner and gone through
the material available on record.
4. 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
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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
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
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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 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;
(g) Accessibility of the location from where the wife resides
to the court where the case is pending;
(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
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
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(supra) and Anindita Das's case (supra), this Court deems it appropriate to
allow the present petition, by issuing following directions:
(i) Petition filed by respondent - husband under Section 9 of the
Hindu Marriage Act, 1955, titled as "Sanjay Vs. Ramesh Devi",
pending in the Court of Learned Principal Judge, Family Court,
Ganaur, is transferred to a Court of competent jurisdiction
within Sessions Division Kaithal.
(ii) Learned District Judge, Sonepat, is directed to transfer complete
record pertaining to the aforesaid case to learned District Judge,
Kaithal, by directing both the sides to appear before the Court
of learned District Judge, Kaithal, on a particular date to be
fixed by him, for further proceedings.
(iii) On receipt of record of the case, learned District Judge, Kaithal,
will either keep the said case in his own Court or to assign the
same to a Court having competent jurisdiction within Sessions
Division Kaithal, to try the same.
(iv) The concerned Court at Kaithal, shall diligently strive to
amicably resolve the marital discord between the parties by
referring the matter to the Mediation and Conciliation Centre.
(v) After transfer at Kaithal, the concerned Court will
accommodate the parties to the lis with at least one date in a
calendar month.
10. However, liberty is granted to the respondent-husband to get the
present transfer application/petition revived, if so advised, to contest the
same, subject to the conditions that:
(i) Petitioner-wife has concealed any material fact or aspect
while filing the present transfer application/petition, with
an intention to mislead this Court for seeking transfer of
the case.
OR
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(ii) Respondent-husband is suffering from any substantial
physical/mental disability or ailment.
OR
(iii) Respondent-husband will clear all arrears of maintenance
amount, if any, in terms of a petition filed by the
petitioner-wife 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) Respondent-husband will file an affidavit, giving an
undertaking to pay Rs.1,000/- per day, to the petitioner-
wife for attending the Court proceedings at Ganaur, on
each and every date of hearing of the case.
AND
(v) Alongwith the application for revival of the present
transfer application/petition, respondent-husband will
furnish a demand draft of Rs.25,000/- in favour of
petitioner-wife, towards the litigation expenses, i.e. to
pursue the case at Ganaur.
11. Since the present transfer application/petition is being disposed
of without issuing notice to the respondent, in order to ensure appearance of
the parties before learned District Judge, Kaithal, as per the direction of
learned District Judge, Sonepat, it is also directed that a copy of this order be
sent to the respondent through registered post, besides sending copies of this
order to learned District Judges concerned, through email as well.
Petitioner through her counsel, is also directed to ensure her
appearance accordingly.
Petition stands disposed of in above terms.
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Pending misc. application(s), if any, also stands disposed of.
(SANJAY VASHISTH)
JUDGE
24.11.2023
rashmi
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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