Chandni Vs Rajeev Pathik

2024:HHC:10907

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No:706 of 2023 Decided on : 04^th November, 2024

______________________ Chandni	_______________ Versus	_____________________ ...Petitioner
Shri Rajeev Pathik		….Respondent

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting? Yes

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For the petitioner	: Ms. Seema Advocate.	K.	Guleria,
For the respondent	: Mr. Harsh Advocate.		Khanna,

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Ranjan Sharma, Judge [Oral]

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The respondent, namely, Rajeev Pathik, has filed a HMA No.179-S/3 of 2023, titled as Rajeev Pathik versus Chandni, which is pending before the Learned Principal Judge (Family Court) Shimla, Himachal Pradesh.

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2. By way of this petition, the petitioner-wife, Chandni, has filed the instant CMPMO with the following relief(s):-

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“ It is, therefore, respectfully prayed that this petition may kindly be allowed and the petition

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

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filed by the respondent under Section 13 of Hindu Marriage Act in the Court of Ld. Principal Judge (Family Court), Shimla bearing HMA No.179-S/3 of 2023, titled as Rajeev Pathik versus Chandni, fixed for 06.01.2024 may kindly be transferred to the Court of Ld. Principal Judge (Family Court) Mandi, District Mandi, H.P. and justice be done.”

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FACTUAL MATRIX:

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3. Case set up by Ms. Seema K. Guleria, Learned Counsel is that the marriage of

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Petitioner-Chandini was solemnized with RespondentRajiv Pathik on 14.08.2012 and both resided together

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at Shimla but, the respondent, turned out the petitioner from his matrimonial home. Since then, the petitioner is stated to be residing at her parental house at Village Daunt, P.O. Jarol tehsil Thunag, District Mandi [H.P]. It is averred that the petitioner has filed a Petition No. 28 of 2022 before Learned Chief Judicial Magistrate, Mandi under Domestic Violence Act, claiming maintenance, which is pending adjudication.

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3(i). Petitioner further submits that she has no means of livelihood and she has no movable and immovable property in her name and she is unable to attend the proceedings at Shimla due to financial

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constraints. It is further averred that on the other hand the respondent is financially well of having sharing movable and immovable properties who can come over to Mandi, which will not cause any prejudice to the Respondent, who can attend both the proceedings [DVA case and HMA case] at one place i.e. Mandi [H.P].

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In above background, the petitioner has prayed that the proceedings i.e. HMA No.179-S/3 of 2023, titled as Rajeev Pathik versus Chandni, pending before the Court of Learned. Principal Judge (Family Court), Shimla (HP) may be transferred to the Court of Learned Principal Judge [Family Court] Mandi [HP].

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PROCEEDINGS BEFORE THIS COURT:

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4. Upon issuance of notice on 21.12.2023,

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Mr. Harsh Khanna, Learned Counsel appeared for the Respondent on 10.01.2024, when, the parties represented to refer the matter for mediation, which remained futile, in terms of the report furnished by Learned Meditator.

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4(i). Upon listing of the case today, no serious

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opposition has been made by the learned Counsel for Respondent to the prayer in these proceedings.

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5. Heard Ms. Seema K. Guleria, learned counsel for the petitioner as well as Mr. Harsh

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Khanna, learned counsel for the respondent and also gone through the case records.

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MANDATE OF LAW REGARDING TRANSFER OF PROCEEDINGS:

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6. While dealing with the issue of transfer of

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proceedings from one court to another in matrimonial matters, convenience of wife is to be preferred over convenience of husband, in terms of the mandate of the Hon’ble Supreme Court in Rajani Kishor Pardeshi

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Versus Kishor Babulal Pardeshi (2005) 12 SCC 237 ,

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in following terms:-

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“ In this type of matter, the convenience of the wife is to be preferred over the convenience of the husband . Hindu Marriage Petition No.6 of 2004, Kishor Babulal Pardeshi v. Rajani Kishor Pardeshi pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra is transferred to the Family Court of proper jurisdiction at Satana, Madhya Pradesh.”

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6(i). In Civil Appeal No.4894 of 2022 [arising

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out of SLP(C) No(s).16465 of 2021], titled as N.C.V.

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Aishwarya versus A.S. Saravana Karthik Sha,

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the Hon’ble Supreme Court has outlined the cardinal principles for considering prayer for transfer of proceedings, from one Court-place to another, in matrimonial matters, in following terms:-

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“8. It is not disputed that the appellant is the resident of Chennai and that the appellant’s husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.

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The cardinal principle for 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 socioeconomic

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

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Further , when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.”

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ANALYSIS:

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7. Taking into account the entirety of the facts

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and circumstances of the case and the cardinal principles outlined by the Hon’ble Supreme Court, in N.C.V. Aishwarya’s case [supra] , this court is of considered view, that the present petition deserves to be allowed, for the reason , that firstly , the convenience of petitioner-wife has to prefer over the convenience of

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the Respondent; and secondly , once the petitioner-wife asserts herself to be economically unsound; having no source of livelihood and having no movable or immovable property in her name also supports the

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plea of the petitioner; and thirdly , the financial constraints of the petitioner-wife discussing her to come over from Thunag [in District Mandi] to Shimla

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[in District Shimla] to attend hearing(s) of case is also a relevant factor; and fourthly , transfer of instant proceedings will enable the parties to participate in both the cases i.e. HMA Case and DVA Case at one place [at Mandi] which shall certainly effectuate the cause of justice between the parties herein; and lastly, once the Learned Counsel for the Respondent has also not seriously opposed the prayer of the petitioner then, in these circumstances, the plea of the petitioner carries weight and deserves to be allowed.

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7(i). A similar issue, praying for transfer of proceedings from one Court to another, has been granted in CMPMO No.604 of 2023 , titled as Manisha Thakur versus Akash Chauhan , decided on 05.12.2023 and in CMPMO No.688 of 2023 , titled as Sumiti Chandel versus Parvesh Singh , decided on 10.01.2024 in following terms:-

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“6. In view of the mandate of law referred to above, and the no objection accorded by the learned counsel for the respondent herein; the present petition is allowed and H.M. Misc. Petition No. 351 of 2023 , titled as Parvesh Singh Vs Sumiti Chandel , pending before the Additional Principal Judge Family

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Court Hamirpur, Himachal Pradesh is ordered to be transferred to the Principal Judge, Family Court, Solan, Himachal Pradesh.”

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CONCLUSION AND DIRECTION:

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8. In view of the above discussion and for the

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reasons, recorded herein-above, the present petition is allowed; and the proceedings i.e. HMA No.179-S/3 of 2023, titled as Rajeev Pathik versus Chandni, pending before the Court of Learned Principal Judge (Family Court), Shimla (HP) are ordered to be transferred to the Court of Learned Principal Judge [Family Court] Mandi, District Mandi [HP].

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9. Consequent upon the directions

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hereinabove, Registry is directed to inform the Court of Learned Principal Judge (Family Court), Shimla to transfer the entire case records of HMA

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No.179-S/3 of 2023, titled as Rajeev Pathik versus

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Chandni, to the Court of Learned Principal Judge (Family Court) Mandi [HP] within two weeks from today; with directions to Family Court [Mandi] to issue fresh notice(s) to the parties and then to proceed further in the matter, in accordance with law.

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