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ADVOCATE PRASHANT – TA No.905 of 2016

TA No.905 of 2016 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
TA No.905 of 2016
Date of decision: 09.02.2017
Preet Inder Kaur
… Applicant
Vs.
Gurwinder Singh
… Respondent
CORAM: HON’BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Prashant Bansal, Advocate
for the applicant.
Mr. Davinder Singh Khurana, Advocate
for the respondent.
*******
RAMESHWAR SINGH MALIK, J. (ORAL)
Applicant-wife, by way of instant transfer application under
Section 24 read with Section 151 of the Code of Civil Procedure (for short
‘CPC’), seeks transfer of the petition under Section 9 of the Hindu Marriage
Act, 1955 (‘the Act’ for short) titled as Gurwinder Singh Vs. Preet Inder Kaur
by respondent-husband from Jalalabad, District Fazilka to Patiala.
Notice of motion was issued and in the meantime, learned Court
below was directed to adjourn the case beyond the date fixed before this
Court.
Heard learned counsel for the parties.
It has gone undisputed before this Court that the applicant-wife,
along with her minor child, is living with her parents at Patiala. Since the
applicant-wife is not working, she is dependent on her parents. Respondenthusband
is not paying any amount of maintenance either to the applicant-wife
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or for the minor child. Distance between Jalalabad and Patiala is about 250
kilometers. Other litigations between the parties, at the instance of the
applicant-wife are also pending at Patiala.
In view of the abovesaid undisputed fact situation of the case,
this Court feels no hesitation to conclude that it is just and expedient to
transfer the petition under Section 9 of the Act from Jalalabad, District Fazilka
to Patiala. It is so said because all the abovesaid undisputed facts clearly go in
favour of the applicant-wife and against the respondent-husband. In the
circumstances of the case, it will not only be inconvenient but would be very
difficult for the applicant-wife to go from Patiala to Jalalabad to pursue the
litigation imposed on her by the respondent-husband under Section 9 of the
Act. Convenience of the wife in transfer applications, like the present one,
arising out of a matrimonial dispute, is one of the relevant consideration.
Further, distance between the two places, financial status of the wife, her
source of income, her age as well as her responsibility for bringing up the
minor child, are the relevant factors to be considered, while deciding the
transfer applications like the present one.
The cardinal principle for exercise of power under Section 24 of
the Civil Procedure Code is that the ends of justice demand the transfer of the
suit, appeal or other proceeding. In matrimonial matters, wherever the Courts
are called upon to consider the plea of transfer, the Courts have to take into
consideration the economic soundness of either of the parties, the social strata
of the spouses and behavioural pattern, their standard of life antecedent to
marriage and subsequent thereto and circumstances of either of the parties in
eking out their livelihood and under whose protective umbrella they are
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seeking their sustenance to life. Generally, it is the wife’s convenience which
must be looked at by the Courts, while deciding a transfer application.
The view taken by this Court also finds support from the
following judgments of the Hon’ble Supreme Court, as well as different High
Courts, including this Court: –
1. Mrs. Maneka Sanjay Gandhi and another Vs. Miss Rani
Jethmalani, AIR 1979 (SC) 468.
2. Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, 1990 (1)
SCC 4.
3. Neelam Kanwar Vs. Devinder Singh Kanwar, 2000 (10) SCC
589.
4. Sumita Singh Vs. Kumar Sanjay and another, AIR 2002 (SC)
396.
5. Mangla Patil Kale Vs. Sanjeev Kumar Kale, 2003 (10) SCC 280.
6. Fatema Vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR 2009
(SC) 1773.
7. Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani, AIR
2009 (SC) 1374.
8. Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi
Friends Education Trust and others, AIR 2008 SC 1333.
9. Nisha Vs. Dharmenda Pratap Singh Rathore, 2015 (3) All. LJ
168.
10. M.V. Rekha Vs. Sathya, 2011 (2) HLR 34.
11. Sneha Vs. Vinayak, 2013 ILR (Karnataka) 165.
12. Rimpal Vs. Balinder Kumar, 2010 (7) RCR (Civil) 286.
13. Anju Vs. Sanjay, 2011 (6) RCR (Civil) 112.
14. Komal Devi @ Komal Kumari @ Komal Rani Vs. Harbhajan
Singh, 2012 (8) RCR (Civil) 84.
The relevant observations made by the Hon’ble Supreme Court in
para 14 of its judgment in Kulwinder Kaur @ Kulwinder Gurcharan
Singh’s case (supra), which can be gainfully followed in the present case, read
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as under: –
“Although the discretionary power of transfer of cases cannot be
imprisoned within a strait-jacket of any cast-iron formula
unanimously applicable to all situations, it cannot be gainsaid
that the power to transfer a case must be exercised with due
care, caution and circumspection. Reading Sections 24 and 25 of
the Code together and keeping in view various judicial
pronouncements, certain broad propositions as to what may
constitute a ground for transfer have been laid down by Courts.
They are balance of convenience or inconvenience to plaintiff or
defendant or witnesses; convenience or inconvenience of a
particular place of trial having regard to the nature of evidence
on the points involved in the suit; issues raised by the parties;
reasonable apprehension in the mind of the litigant that he might
not get justice in the court in which the suit is pending; important
questions of law involved or a considerable section of public
interested in the litigation; interest of justice demanding for
transfer of suit, appeal or other proceeding, etc. Above are some
of the instances which are germane in considering the question
of transfer of a suit, appeal or other proceeding. They are,
however, illustrative in nature and by no means be treated as
exhaustive. If on the above or other relevant considerations, the
Court feels that the plaintiff or the defendant is not likely to have
a fair trial in the Court from which he seeks to transfer a case, it
is not only the power, but the duty of the Court to make such
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order.”
Again, deliberating on an identical issue, in the case of Dr.
Subramaniam Swamy (supra), the Hon’ble Supreme Court held as under: –
“The question of expediency would depend on the facts and
circumstances of each case but the paramount consideration for
the exercise of power must be to meet the ends of justice. It is
true that if more than one court has jurisdiction under the Code
to try the suit, the plaintiff as dominus litis has a right to choose
the Court and the defendant cannot demand that the suit be tried
in any particular court convenient to him. The mere convenience
of the parties or any one of them may not be enough for the
exercise of power but it must also be shown that trial in the
chosen forum will result in denial of justice. Cases are not
unknown where a party seeking justice chooses a forum most
inconvenient to the adversary with a view to depriving that party
of a fair trial. The Parliament has, therefore, invested this Court
with the discretion to transfer the case from one Court to another
if that is considered expedient to meet the ends of justice. Words
of wide amplitude- for the ends of justice- have been advisedly
used to leave the matter to the discretion of the apex court as it is
not possible to conceive of all situations requiring or justifying
the exercise of power. But the paramount consideration must be
to see that justice according to law is done; if for achieving that
objective the transfer of the case is imperative, there should be
no hesitation to transfer the case even if it is likely to cause some
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TA No.905 of 2016 6
inconvenience to the plaintiff. The petitioner’s plea for the
transfer of the case must be tested on this touchstone.
(emphasis supplied)”
The abovesaid law laid down by the Hon’ble Supreme has also
been followed by this Court in order dated 16.03.2016 passed in TA No.945
of 2015 (Sushma and others Vs. Kapil @ Sahil Bansal) and TA No.797 of
2015 (Jagroop Kaur Vs.Varinder Singh Bhela @ Tony) which, in turn, were
based on the judgments of the Hon’ble Supreme Court, as well as different
High Courts, including this Court.
Reverting to the facts of the case in hand and respectfully
following the law laid down by the Hon’ble Supreme Court as well as
different High Courts, including this Court, it is unhesitatingly held that
applicant-wife is entitled for getting the petition under Section 9 of the Act
transferred from Jalalabad to Patiala, so as to enable her to pursue the
litigation without facing any undue hardship or harassment at the hands of the
respondent-husband. It is the settled principle of law that justice is not only to
be done but it should also appear to have been done. If the applicant-wife is
forced to go from Patiala to Jalalabad, it would amount to denial of justice to
her. Thus, to strike a balance between the parties with a view to do complete
and substantial justice and proceeding on a holistic view of the matter, this
Court is of the considered view that it would be just and expedient to transfer
the petition under Section 9 of the Act from Jalalabad, District Fazilka to
Patiala.
No other argument was raised.
Considering the peculiar facts and circumstances of the case
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noted above, coupled with the reasons aforementioned, this Court is of the
considered view that instant transfer application deserves to be accepted and
the same is hereby allowed. Petition under Section 9 of the Act titled as
Gurwinder Singh Vs. Preet Inder Kaur filed by the respondent-husband is
ordered to be transferred from Jalalabad, District Fazilka to Patiala.
Accordingly, the learned District Judge, Fazilka is directed to
send complete record of the abovesaid petition to the learned District Judge,
Patiala, at an early date but in any case within a period of one month from the
date of receipt of certified copy of this order.
The learned District Judge, Patiala is also directed either to
decide the case himself or assign it to the learned Court of competent
jurisdiction, for an early decision, in accordance with law.
With the abovesaid observations made and directions issued,
present transfer application stands disposed of, however, with no order as to
costs.
[ RAMESHWAR SINGH MALIK ] 09.02.2017 JUDGE
vishnu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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