Petition transferred from Family Court Nalagarh to Family Court Kinnaur based on petitioner-wife's residence with parents and economic dependency, applying the principle of wife's convenience.
Transfer of Section 9 HMA petition from Family Court Nalagarh to Family Court Kinnaur.
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( 2024:HHC:8809 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
| CMPMO No.327/2024 Decided on: 19.09.2024 |
||
|---|---|---|
| Kusum Rathore | …Petitioner | |
| Versus | ||
| Praveen Chauhan | ....Respondent. | |
| ……………………… Coram |
……………… | ………………………………………. |
Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?1
For the petitioner: Ms. Tanu Sharma, Advocate. For the respondent: Mr. Shyam Singh and Mr. Prince Vishwajit Thakur, Advocates.
Jyotsna Rewal Dua, Judge
The petitioner has prayed for transferring the case instituted by the respondent against her under Section 9 of the Hindu Marriage Act from the Court of learned Additional District Judge-cum-Family Court Nalagarh, District Solan H.P. to the Court of learned District Judge Family Court Kinnaur at Rampur (Rekong Peo Camp).
2. The case set up by the petitioner is that the marriage between the parties was solemnized on 21.11.2020; A child was born to the couple, who is presently stated to be two years old; Respondent is working in a company at Nalagarh; The petitioner
stayed with her husband in the matrimonial home, however, on 1 Whether reporters of the local papers may be allowed to see the judgment? yes
2
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account of acts of cruelties committed upon her by the respondent, she left her matrimonial home in September 2023; She lived in her sister’s home at Pinjore for some time, however, from November 2023 onwards, she has been residing with her parents at Kinnaur; Petitioner is unemployed & dependent upon her parents for living. No maintenance has been provided to her by the respondent.
It has further been pleaded that the petitioner has also instituted a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against the respondent in the Court of learned Sub-Judicial Magistrate Kinnaur at Rekong Peo on 26.12.2023. The complaint is still pending adjudication before the said Court. The petitioner seeks transfer of the petition instituted by her husband under Section 9 of the Hindu Marriage Act before the Court of learned Additional District Judge-cum-Family Court Nalagarh District Solan to the Court of learned District Judge Family Court Kinnaur at Rampur (Rekong Peo Camp).
3. Learned counsel for the respondent did not dispute the factual averments made in the petition.
4. I have heard learned counsel for the petitioner and considered the case file.
Hon’ble Apex Court in Sumita Singh Versus Kumar Sanjay and another2 ; Soma Choudhury Versus Gourab
2 (2001) 10 SCC 41
3
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Choudhaury3 ; Rajani Kishor Pardeshi Versus Kishor Babulal Pardeshi4 ; Arti Rani alias Pinki Devi and another Versus Dharmendra Kumar Gupta5 ; and Anjali Ashok Sadhwani Versus Ashok Kishinchand Sadhwani6 , has held that it is the wife’s convenience, which must be looked at in a case where she seeks transfer of the petition.
In Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others7 , following parameters for transfer of cases were outlined:-
“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 question 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.”
3 (2004) 13 SCC 462
4 (2005) 12 SCC 237 ,
5 (2008) 9 SCC 353
6 AIR 2009 SC 1374
7 (2008) 3 SCC 659
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In Krishna Veni Nagam Versus Harish Nagam8 ,
another trend where instead of transferring the proceedings at the convenience of wife, the husband’s paying travel, lodging and boarding expenses of wife and/or persons accompanying for each hearing was noticed and considered. It was observed as under:-
“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, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing 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 videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases 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 videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by videoconferencing.
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. The safeguards can be:
(i) Availability of videoconferencing facility.
(ii) Availability of legal aid service.
(iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.
(iv) E-mail address/phone number, if any, at which litigant from outstation may communicate.”
8 (2017) 4 SCC 150
5
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Recently the Hon’ble Apex Court in N.C.V. Aishwarya
Vs. A.S. Saravana Karthik Sha9 has held as under:-
“9. The cardinal principle for the 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 socio-economic paradigm in Indian society, generally, it is the wife's convenience which must be looked at while considering transfer. ”
5 . In the instant case, it is not in dispute that the petitioner
is living with her parents at Kinnaur. Petitioner is unemployed and is completely dependent upon her parents. It would be difficult for the petitioner to attend the proceedings in the petition instituted against her by her respondent before the learned Additional District Judgecum-Family Court Nalagarh District Solan. Considering the pleadings, submissions made for the respondent and in view of the law laid down by the Hon’ble Supreme Court that wife’s convenience is of paramount consideration, the petitioner has made out a case for transfer of the petition. Accordingly, case titled Praveen Chauhan Vs. Kusum Rathore pending before Court of
9AIR 2022 SC 4318
6
( 2024:HHC:8809 )
learned Additional District Judge-cum-Family Court Nalagarh District Solan is ordered to be transferred to the Court of learned District Judge Family Court Kinnaur at Rampur (Rekong Peo Camp).
Registry is directed to convey this order forthwith to the learned Additional District Judge-cum-Family Court Nalagarh District Solan H.P. as well as to the learned District Judge Family Court Kinnaur at Rampur (Rekong Peo Camp) H.P. for compliance. Learned Additional District Judge-cum-Family Court Nalagarh District Solan H.P. is directed to transfer the record pertaining to above titled petition forthwith to the learned District Judge Family Court Kinnaur at Rampur (Rekong Peo Camp) H.P. Parties through their learned counsel are directed to remain present before the learned District Judge Family Court Kinnaur at Rampur (Rekong Peo Camp) H.P. on 15.10.2024
With these observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.
Jyotsna Rewal Dua Judge
September 19, 2024(rohit)
1 issue framed by the court
Whether the petition under Section 9 of the Hindu Marriage Act should be transferred to the forum convenient to the petitioner-wife?
Colour shows how this judgement treated each authority
Sumita Singh Versus Kumar Sanjay and anotherRelied on¶20
Sumita Singh Versus Kumar Sanjay and another (2001) 10 SCC 41 · Who else cites this
Soma Choudhury Versus Gourab ChoudhauryRelied on¶20
Soma Choudhury Versus Gourab Choudhaury (2004) 13 SCC 462 · Who else cites this
Rajani Kishor Pardeshi Versus Kishor Babulal PardeshiRelied on¶20
Rajani Kishor Pardeshi Versus Kishor Babulal Pardeshi (2005) 12 SCC 237 · Who else cites this
Arti Rani alias Pinki Devi and another Versus Dharmendra Kumar GuptaRelied on¶20
Arti Rani alias Pinki Devi and another Versus Dharmendra Kumar Gupta (2008) 9 SCC 353 · Who else cites this
Anjali Ashok Sadhwani Versus Ashok Kishinchand SadhwaniRelied on¶20
Anjali Ashok Sadhwani Versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374 · Who else cites this
Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and othersReferred¶21
Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC 659 · Who else cites this
Krishna Veni Nagam Versus Harish NagamReferred¶30
Krishna Veni Nagam Versus Harish Nagam (2017) 4 SCC 150 · Who else cites this
N.C.V. Aishwarya Vs. A.S. Saravana Karthik ShaRelied on¶41
N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha AIR 2022 SC 4318 · Who else cites this
3 provisions across 3 enactments
Kusum Rathore
Praveen Chauhan
Jyotsna Rewal Dua
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
