Raj Kumari Vs Ashwani Kumar

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 733 of 2023 Reserved on: 23.05.2023 Date of Decision: 10.6.2024.

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Raj Kumari ...Petitioner Versus Ashwani Kumar ...Respondent

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Coram

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Hon’ble Mr. Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

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: For the petitioner Mr. Jyotirmay Bhatt, Advocate. : For the Respondent Mr. Gurdev Negi, Advocate.

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Rakesh Kainthla, Judge

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The present petition has been filed seeking transfer of the petition (HMA No. 206 of 2022), titled Ashwani Kumar Vs. Raj Kumari, pending before the learned Principal Judge, (Family Court), Bilaspur to the Court of learned Principal Judge, (Family Court), Solan. It has been asserted that the petitioner is a permanent resident of Tehsil Kasauli, District Solan, H.P. The marriage between the parties was solemnized on 30.9.2010 as

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

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per Hindu Rites and Customs. The parties started residing at Village Tungri, Tehsil Jhandutta, District Bilaspur, H.P. The relations between the parties became strained and the respondent filed a divorce petition before learned Principal Judge, Family Court, Bilaspur, H.P. for dissolution of marriage on the ground of cruelty and desertion. The petitioner is unemployed having no source of income. She has to travel a distance of about 100 kilometres to attend the proceedings. She is unable to bear the expenses. The respondent is self-employed and has an income of ₹40,000/- to ₹50,000/- per month. Hence, it was prayed that the petition pending before the learned Principal Judge (Family Court) Bilaspur be transferred to the Court of learned Principal Judge (Family Court) Solan.

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No reply was filed.

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I have heard Mr. Jyotirmay Bhatt, learned counsel for the petitioner and Mr. Gurdev Negi, learned counsel for the respondent.

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Mr. Jyotirmay Bhatt, learned counsel for the petitioner submitted that the petitioner is residing at a distance of 100 kilometres from Bilaspur and it is very difficult for her to

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visit Bilaspur on every date of hearing. She has no income and is dependent upon her relatives. The respondent has sufficient income and he can easily attend the hearing at Solan. Therefore, he prayed that the present petition be allowed and the proceedings pending before the learned Principal Judge, Family Court, Bilaspur be transferred to the learned Principal Judge, Family Court, Solan, H.P.

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Mr. Gurdev Negi, learned counsel for the respondent submitted that the petitioner can claim the maintenance pendente-lite and the expenses of defending the litigation. The respondent would be put to the harassment in case the application is allowed. Thus, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the record carefully.

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It was laid down by the Hon’ble Supreme Court in N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha AIR 2022 SC 4318

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that while exercising the power under Section 24 of CPC, the Court should see the economic condition, social strata and

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behavioural pattern of the parties. Generally, the convenience of the wife should be looked at while considering the transfer. It was observed: -

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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.

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In the present case, the petitioner specifically

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asserted that she has no income and is dependent on her relatives to sustain herself. This plea is duly supported by an affidavit, whereas there is no counter affidavit on behalf of the respondent. Hence, the plea of the petitioner that her financial condition is not such as would permit her to visit Bilaspur has to be accepted as correct. Her plea that the respondent has sound financial condition is also supported by an affidavit, whereas no affidavit has been filed on behalf of the respondent. Hence, the

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respondent will not suffer financially, in case he is directed to visit Solan instead of Bilaspur.

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In view of the above, the present petition is allowed and the petition (HMA No. 206 of 2022), titled Ashwani Kumar Vs. Raj Kumari, pending before learned Principal Judge, (Family Court), Bilaspur, H.P. is ordered to be transferred to the Court of learned Principal Judge, (Family Court), Solan, H.P.

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The observation made here-in-above shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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A copy of this order be sent to both the learned Courts below.

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The parties through their respective counsel are directed to appear before the Court of learned Principal Judge, Family Court, Solan H.P. on 26.6.2024.

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( Rakesh Kainthla) Judge

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10^th June, 2024 (Chander)

Raj Kumari v. Ashwani Kumar

Case brief

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Raj Kumari v. Ashwani Kumar

Case brief

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