Disposed

Shivani Sharma v. Prince Sharma

Himachal Pradesh HC6 Sept 2024CMPMO/430/2024

Case brief

AI extract

What is this about?

Wife sought transfer of husband's restitution of conjugal rights petition from Una Family Court Circuit Camp to Barsar, Hamirpur, citing financial constraints and residence with her widowed mother. Relying on Supreme Court precedent that the wife's convenience is paramount in matrimonial transfers, the High Court allowed the transfer petition.

What did the court decide?

HMA No. 35/2024 transferred from Additional Principal Judge Family Court Una (Circuit Court Camp Amb) to Principal Judge Family Court Barsar, District Hamirpur.

Shivani Sharma Vs Prince Sharma — Matrimonial and Divorce | Himachal Pradesh HC (2024)

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( 2024:HHC:8049 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 430/2024 Decided on: 06.09.2024 Shivani Sharma …Petitioner Versus Prince Sharma ....Respondent. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?¹ For the petitioner: Mr. Raman Sharma, Advocate. For the respondent: Nemo.

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Jyotsna Rewal Dua, Judge

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Parties are husband and wife. Petitioner (wife) seeks transfer of HMA No. 35/2024 instituted by the respondent under Section 9 of the Hindu Marriage Act from the Court of learned Additional Principal Judge Family Court Una, Circuit Court Camp Amb, District Una, H.P. to the Court of learned Principal Judge Family Court Barsar, District Hamirpur, H.P. The respondent though served, however, has chosen not to attend and contest the petition.

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2. Learned counsel for the petitioner submitted that the marriage between the parties was solemnized as per Hindu rites and ceremonies on 20.06.2021; They were blessed with a male child; Due to matrimonial discord between the parties, the petitioner

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1 Whether reporters of the local papers may be allowed to see the judgment? yes

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( 2024:HHC:8049 )

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w.e.f. 27.04.2023 has been residing with her windowed mother at Village Makteri, Post Office Bhakreri, Tehsil Barsar, District Hamirpur; Petitioner is not in a position to defend the petition instituted against her by the respondent-husband at Circuit Court Camp Amb, District Una; On account of financial constraints, it is difficult for her to attend the hearings in the Court of learned Additional Principal Judge Family Court Una, Circuit Court Camp Amb, District Una, H.P.

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3. I have heard learned counsel for the petitioner and considered the case file.

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Hon’ble Apex Court in Sumita Singh Versus Kumar Sanjay and another² ; Soma Choudhury Versus Gourab 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.

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2 (2001) 10 SCC 41

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3 (2004) 13 SCC 462

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4 (2005) 12 SCC 237 ,

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5 (2008) 9 SCC 353

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6 AIR 2009 SC 1374

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( 2024:HHC:8049 )

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In Kulwinder Kaur alias Kulwinder Gurcharan Singh

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versus Kandi Friends Education Trust and others⁷ , following parameters for transfer of cases were outlined:-

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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 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.”

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In Krishna Veni Nagam Versus Harish Nagam⁸ ,

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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:-

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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, 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

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8 (2017) 4 SCC 150

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7 (2008) 3 SCC 659

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( 2024:HHC:8049 )

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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.

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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. The safeguards can be:

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(i) Availability of videoconferencing facility.

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(ii) Availability of legal aid service.

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(iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.

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(iv) E-mail address/phone number, if any, at which litigant from outstation may communicate.”

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Recently the Hon’ble Apex Court in N.C.V. Aishwarya

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Vs. A.S. Saravana Karthik Sha⁹ has held as under:-

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“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

9AIR 2022 SC 4318

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in Indian society, generally, it is the wife's convenience which must be looked at while considering transfer. ”

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4 . As per projected case of the petitioner, she alongwith her child is living separately with her widowed mother at Village Makteri, Post Office Bhakreri, Tehsil Barsar, District Hamirpur w.e.f. 27.04.2023. Considering the submissions made by learned counsel for the petitioner 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, HMA No. 35/2024 titled Prince Sharma Vs. Shivani pending before Court of learned Additional Principal Judge Family Court Una, Circuit Court Camp Amb, District Una, H.P. is ordered to be transferred to the Court of learned Principal Judge Family Court Barsar, District Hamirpur, H.P.

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Registry is directed to convey this order forthwith to the learned Additional Principal Judge Family Court Una, Circuit Court Camp Amb, District Una, H.P. as well as to the learned Principal Judge Family Court Barsar, District Hamirpur, H.P. for compliance. Learned Additional Principal Judge Family Court Una, Circuit Court Camp Amb, District Una is directed to transfer the record pertaining to above titled petition forthwith to the learned Principal Judge Family Court Barsar, District Hamirpur, H.P. Parties through their

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( 2024:HHC:8049 )

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learned counsel are directed to remain present before the learned Principal Judge Family Court Barsar, District Hamirpur, on 01.10.2024.

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With these observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

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Jyotsna Rewal Dua Judge

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September 06, 2024(rohit)