Allowed

Bimla Devi v. Daya Nand

Himachal Pradesh HC18 Sept 2017CMPMO/265/2017

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh disposed of a writ petition under Article 226 and Section 24 CPC seeking transfer of matrimonial proceedings. While referencing new Supreme Court directions allowing alternatives to transfer such as video conferencing, the court ruled that in the specific facts where the respondent already faced jurisdictional hurdles in other pending cases, transferring the proc

What did the court decide?

Transfer of proceedings under H.M.A. No. 55 of 2016 from Additional District Judge, Sunder Nagar, to Additional District Judge, Karsog, District Mandi, H.P.

Bimla Devi Vs Daya Nand — Matrimonial and Divorce | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CMPMO No. 265 of 2017. Date of decision : 18^th September, 2017.

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________________________________________________________ Smt. Bimla Devi . …Petitioner Versus Sh. Daya Nand ..…Respondent.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting? No

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For the Petitioner : Mr. H.S. Rangra, Advocate. For the Respondent : Mr. G.R. Palsra, Advocate.

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Tarlok Singh Chauhan, Judge ( Oral).

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This petition under Article 227 of the Constitution of India, read with Section 24 of the Code of Civil Procedure has been preferred on behalf of the petitioner-wife seeking transfer of the petition i.e. H.M.A. No. 55 of 2016 titled as Daya Nand vs. Bimla Devi, from the Court of learned Additional District Judge-1, Camp at Sunder Nagar, District Mandi, H.P. to the Court of learned District Judge, Shimla, District Shimla, H.P.

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Undisputed facts of the case are that the marriage between the parties was solemnized on 21.11.1989 in accordance with the Hindu Rites and out of the wedlock, a son was born, who is now doing Engineering and is residing at Shimla.

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____________________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes

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It was also not in dispute that the petitioner has filed certain proceedings, which are pending adjudication in the Court of learned Judicial Magistrate 1^st Class, Karsog, District Mandi. Whereas the respondent, on the other hand has initiated proceedings under Section 13 of the Hindu Marriage Act, which are pending adjudication in the Court of learned Additional District Judge, Mandi,Camp at Sunder Nagar, District Mandi, H.P. and has sought the transfer of these proceedings either to the Court of learned District Judge, Shimla or to the Court of Additional District Judge-1, Mandi, Camp at Karsog, District Mandi, H.P.

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I have heard learned counsel for the parties and perused the record.

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The petitioner has vehemently contended that in matrimonial proceedings and other such like proceedings, which are the outcome of matrimonial discord, it is the convenience of the wife, which has to be looked at and not the inconvenience of the husband. In support of such submission, strong reliance is placed upon a judgment rendered by this Court in Urvashi Rana vs. Himanshu Nayyar Latest HLJ 2016 (HP) 925, (CMPMO No. 177 of 2016, decided on 15.07.2016) wherein it was held as under:-

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“5. Mr. Rakesh Kumar Thakur, learned counsel for the petitioner, has strenuously argued that in matrimonial proceedings and other like proceedings which are the outcome of matrimonial discord, it is the convenience of the

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wife which has to be looked at. In support of his contentions, strong reliance has been placed upon the judgments of the Hon’ble Supreme Court in Sumita Singh versus Kumar Sanjay and another (2001) 10 SCC 41, Soma Choudhury versus Gourab Choudhaury (2004) 13 SCC 462, Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi (2005) 12 SCC 237, Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC 659, Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta (2008) 9 SCC 353 and Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374.

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In Sumita Singh versus Kumar Sanjay and another (2001) 10 SCC 41, it was held by the Hon’ble Supreme Court that in a case where the wife seeks transfer of the petition, then as against husband’s convenience, it is the wife’s convenience which must be looked at.

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In Soma Choudhury versus Gourab Choudhaury (2004) 13 SCC 462, it was held by the Hon’ble Supreme Court that once the wife alleges that she has no source of income whatsoever and was entirely dependent upon his father, who was a retired government servant, then it was the convenience of the wife which was required to be looked into and not that of the husband, who had pleaded a threat to his life. It was further observed that if the respondent therein had any threat to his life, he could take police help by making an appropriate application to this effect.

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In Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi (2005) 12 SCC 237, in a case seeking transfer of the case at the instance of the wife, it was specifically held by the Hon’ble Supreme Court that convenience of wife was the prime consideration.

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Similarly, while dealing with the application for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC 659 , the Hon’ble Supreme Court after analyzing the provisions of Sections 24 and 25 of the Code of Civil Procedure laid down certain broad parameters for transfer of cases and it was held:-

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“23. 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 the plaintiff or the 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 order.”

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In Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta (2008) 9 SCC 353 , the Hon’ble Supreme Court was dealing with a case where the wife had

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sought transfer of proceedings on the ground that she was having a minor child and it was difficult for her to attend the Court at Palamu, Daltonganj, which was in the State of Jharkhand and at a quite distance from Patna where she was now residing with her child. Taking into consideration the convenience of the wife, the proceedings were ordered to be transferred.

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Similarly, in Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374 , the wife had sought transfer of the case to Bombay from Indore in Madhya Pradesh on the ground of inconvenience as there was none in her family to escort her to Indore and on this ground the proceedings were ordered to be transferred.

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From the conspectus of the aforesaid judgments the broad consensus that emerges is that in dispute of the present kind where the petitioner is residing at her parental house at Chamba and, therefore, it is the convenience of the petitioner which is required to be considered over and above the inconvenience of the husband.”

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Though the aforesaid judgment fully supports the contention of the petitioner, however, this Court cannot ignore the latest judgment of the Hon’ble Supreme Court on the subject, which was delivered recently on 9^th March, 2017 in case Krishna Veni Nagam Vs. Harish Nagam (2017) 4 SCC 150, the relevant observations whereof read thus: -

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“[5] On 9th January, 2017 when the matter came -up for hearing, the following order was passed:

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"1. This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the

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petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The petitioner has to look after her minor daughter, who is living with her.

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Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides.

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This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants have to travel to this Court and spend on litigation. Question is whether this can be avoided?

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We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed.

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In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by

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the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered. 6. However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court.

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List the matter on 31st January, 2017.

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We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A set of papers may be furnished to the amicus." [6] Thus, the question is whether an order can be passed so as to provide a better alternative to each individual being required to move this Court.

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[7] We have already noted that large number of transfer petitions of the present nature are being filed in this Court and are being mechanically allowed. Similar observation was made by this Court more than 10 years ago in Anindita Das v. Srijit Das, 2006 9 SCC 197:

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" On an average at least 10 to 15 transfer petitions are on board of each court on each admission day." It has also been observed in a number of cases that in absence of any male member being available to accompany the wife who is party to matrimonial proceedings to a different place, it may render it "expedient for ends of justice" to transfer proceedings.[Mona Aresh Goel v. Aresh Satya Goel, 2000 9 SCC 255; Lalita A. Ranga v. Ajay Champalal Ranga, 2000 9 SCC 355; Deepa v, Anil Panicker,

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2000 9 SCC 441; Archana Rastogi v. Rakesh Rastogi, 2000 10 SCC 350; Leena Mukherjee v. Rabi Shankar Mukherjee, 2002 10 SCC 480; Neelam Bhatia v. Satbir Singh Bhatia, 2004 13 SCC 436; Soma Choudhury v. Gourab Choudhaury, 2004 13 SCC 462; Rajesh Rani v. Tej Pal, 2007 15 SCC 597; Vandana Sharma v. Rakesh Kumar Sharma, 2008 11 SCC 768; and Anju Ohri v. Varinder Ohri, 2007 15 SCC 556.]

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[8] Of course in some cases, it was observed that instead of proceedings being transferred, the husband should pay travel, lodging and boarding expenses of the wife and/or person accompanying for each hearing. Premlata Singh v. Rita Singh, 2005 12 SCC 277 This trend has also been followed in other matrimonial disputes, including guardianship dispute, etc. Gana Saraswathi v. H. Raghu Prasad, 2000 10 SCC 277.

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[9] The Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being almost mechanically allowing is that they are not denied justice on account of their inability to participate in proceedings instituted at a different place on account of difficulty either on account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing equal access to justice, power of the State to make special provisions for women and children and duty to uphold the dignity of women. Various steps have been taken in this direction.

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[14] One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus,

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transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial ases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.

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[15] The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

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[16] The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court

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must have at least one email ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.

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[17] We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.

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[18] We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons.

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The safeguards can be:-

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i) Availability of video conferencing facility.

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ii) Availability of legal aid service.

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iii) Deposit of cost for travel, lodging and

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boarding in terms of Order XXV CPC.

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iv) E-mail address/phone number, if any, at

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which litigant from out station may

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communicate.

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[19] We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled "Harish Nagam vs. Krishna Veni Nagam" pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.”

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Obviously, the judgment rendered by this Court in Urvashi Rana’s case supra, will have to be read and re-conciled with the latest judgment of Hon’ble Supreme Court in Krishna Veni Nagam’s case and, therefore, wherever there is availability of video conference facility, the Courts will have to readily resort to the same and no party would then have any right to insist upon

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transfer of the case only on account of the party being a lady or merely on the ground of inconvenience.

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However, as regards the facts of the instant case, it would be noticed that the proceedings are already pending adjudication before learned Judicial Magistrate at Karsog and, therefore, the respondent otherwise has to go to Karsog to attend those proceedings. Therefore, much prejudice would not be caused to him in case the instant proceedings are also transferred to Karsog, District Mandi.

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Therefore, taking into account the peculiar facts and circumstances of the instant case, the proceedings i. e. petition H.M.A. No.55 of 2016 titled as Daya Nand vs. Bimla Devi pending in the Court of learned Additional District Judge-I, Camp at Sunder Nagar, District Mandi, H.P. are transferred to the Court of learned Additional District Judge-I, Mandi, Camp at Karsog, District Mandi, H.P. The parties, through their counsel, shall appear before the Court of learned Additional District Judge-I, Camp at Karsog, District Mandi, on 9^th October, 2017. The said Court is expected to decide the case as expeditiously as possible and in no event later than 31^st December, 2017.

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The petition stands disposed of in the aforesaid terms,

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so also the pending applications, if any.

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Copy dasti.

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September 18, 2017. (Tarlok Singh Chauhan) (GR) Judge

Bimla Devi v. Daya Nand

Case brief

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Bimla Devi v. Daya Nand

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