Disposed

Babli Devi v. Sevan Singh

Himachal Pradesh HC5 Sept 2012CMPMO/354/2010

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh exercised writ jurisdiction under Article 227 to dispose of a petition seeking transfer of divorce and custody proceedings from Shimla to Kangra. Addressing the petitioner’s inability to travel and child custody issues, the Court granted directions for travel expenses and procedural accommodations rather than a formal transfer.

What did the court decide?

Respondent must pay travel and stay expenses for petitioner’s court attendance in Shimla including attendant and child; no adjournments by respondent; petitioners liberty to seek revision for maintena

Babli Devi Vs Sevan Singh — Service and Employment | Himachal Pradesh HC (2012)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CMPMO No. 354 of 2010.

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Date of Decision: 5^th September, 2012.

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_________________________________________________________

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Smt. Babli Devi daughter of Shri Dohgro, resident of B.S.N.L. Colony, Palampur, Tehsil Palampur, District Kangra, H.P.

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….Petitioner.

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Versus

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Sevan Singh son of Shri Madan Singh, resident of Village Deha (Balson), Tehsil Theog, District Shimla, H.P.

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….Respondent.

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Petition under Article 227 of the Constitution of India.

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Coram

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The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?¹ No.

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For the Petitioner :	Mr. M.L. Sharma, Advocate
For the Respondent:	Ms. Parul Negi, Advocate vice Mr.
	P.P. Chauhan,Advocate.

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Dev Darshan, J. (oral)

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This petition has been preferred by the petitioner who is the wife of the respondent with the prayer that divorce petition No.6-S/3 of 2010, titled as Sevan Singh vs. Smt. Babli Devi pending in the Court of the learned Additional District Judge, Fast Track Court, Shimla be transfer to the Court of the learned District Judge, Kangra at Dharamshala. The petitioner states that she was compelled to leave her matrimonial home due to the conduct of the respondent and now she is living with her parents at Palampur. A child was born from the wedlock which was forcibly taken away by the respondent. In these

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1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.

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circumstances, she filed a petition before the learned Judicial Magistrate, Palampur under the provisions of Section 25 of the Guardian and Wards Act, 1980 for custody of the child. This case has been transferred to the Court of the learned Judicial Magistrate, Theog from the Court of learned Judicial Magistrate, Palampur. The petitioner makes a number of allegations against the respondent about his misbehaviour etc., as also the fact that she is getting a sum of Rs.1000/as maintenance in terms of the order of maintenance passed by the learned Judicial Magistrate, Palampur. She is totally dependent upon her parents because Rs.1000/- is not sufficient to meet her day today expenses. In these circumstances, she prays that the petition be transferred.

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This petition is resisted on number of grounds, of course, denying all the allegations.

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Learned counsel appearing for the petitioner relied upon the decision of the Supreme Court in Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani, (2009)16 SCC 188 holding therein that the powers under Section 25 of the Code of Civil Procedure (hereinafter referred to as CPC) would be exercised where the facts of the case so warrant. In that case, the case was pending in the Family Court at Indore which was sought to be transferred therefrom to Mumbai. The Court holds that the distance between Mumbai and Indore is 900 kilometers and considering the fact that the petitioner wife has no one in her family to escort her during her journey from Mumbai to Indore, it would be proper to transfer the case from the Family Court of Indore to Family Court at Bandra, Mumbai. Learned counsel also relied upon the judgment of Supreme Court in Sumita Singh versus

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Kumar Sanjay and another, AIR 2002 SC 396 where the Supreme Court exercised the power considering the distance between Delhi to Ara is about 1100 kilometers where the petitioner was required to be travel and was harassed.

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Learned counsel appearing for the respondent relied upon the decision of this Court in CMPMO No. 106 of 2012, titled Ms. Deepa Kumari vs. Ashwani K. Lal, wherein the Hon’ble Deepak Gupta, (J) holds that :

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“A bare perusal of this provision shows that the proceedings under the Act can be commenced at the place where the marriage was solemnized; at the place where the respondent at the time of presentation of petition resides and at the place where the parties last resides together. By amendment of 2003, clause 3(a) has been added which provides that in case the wife is the petitioner she can file the petition at the place where she is residing. However, this does not mean that in case the husband files the petition at the place where marriage was solemnized or at the place where the couple last resided together the case must be transferred to the place where the wife resides.

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On the other hand Sh.K.D. Sood, learned counsel for the respondent has relied upon the judgments of the Apex court in Kalpana Deviprakash Thakar (Smt.) vs. Dr.Deviprakash Thakar, (1996) 11 SCC 96 and Damyanti Devi vs. Indrajeet, 2008 (1) Civil Court Cases 149 (SC).

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True it is that the convenience of the wife should be taken into consideration but this will have to depend on the facts and circumstances of each case. It cannot be laid down that in every case the petition must be transferred to the court in whose jurisdiction the wife resides.”

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Learned counsel also placed reliance upon the judgment of this Court in CMPMO No. 127 of 2012, titled as Bharti versus Dr. Ravi Sharma , decided on 20.7.2012 holding that the transfer of the case would depend upon the facts of each case. It is trite that in matrimonial proceedings, it is not mandatory for a party to be present in the Court on each and every date when the petition is taken up for hearing. Instructions could be imparted to the counsel by writing or other means of communication not necessarily by personal presence. The State of Himachal Pradesh is hilly terrain and travel from Palampur to Shimla would entail journey of about 6 to 7 hours by bus, though the distance is about 200 kilometers. It is also true that the petitioner being a lady would feel inconvenienced.

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In these circumstances, this petition is disposed of with the directions that:

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(a). the respondent shall pay to the petitioner expenses for travelling as also staying at Shimla for herself and attendant for the date so fixed by the Court when the petitioner is required to travel to attend the proceedings in the Court as also on evidence etc. and to consult her lawyer.

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(b). Stay and traveling expenses shall also include those for her daughter who accompanies the petitioner as also an attendant/other relative who would be traveling with her.

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(c). A direction is also issued to the learned trial Court not to order the presence of the petitioner on every date of hearing and only to ask for her attendance when it is absolutely essential in accordance with law.

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(d). It will be open to the petitioner to apply the learned trial Court for revision of the maintenance in accordance with law, which she had been granted is paltry.

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The learned Court, trying the case at Shimla, will ensure that no adjournment shall be granted at the behest of the respondent. Adjournment shall only be granted when it becomes absolutely essential and is required in the interest of justice. The case shall be disposed of as expeditiously as possible. This petition is disposed of. Liberty reserved to the parties to approach this Court again in case so warranted.

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All pending applications also stand disposed of.

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( Dev Darshan Sud), 5^th September, 2012. Judge (jai)

Babli Devi v. Sevan Singh

Case brief

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Babli Devi v. Sevan Singh

Case brief

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