Allowed

Neha Patney Kapoor v. Dheeraj Kapoor

Punjab & Haryana HC16 Mar 2023TA/329/2023

Case brief

AI extract

What is this about?

This High Court allowed a transfer application filed by a handicapped wife seeking to shift her husband's Section 9 divorce proceeding from Yamunanagar to Gurugram, citing her health, lack of income, and the convenience principle enshrined in Supreme Court precedents.

What did the court decide?

Transfer of husband's Section 9 petition from Family Court, Yamunanagar to Gurugram; direction to District Judge Gurugram to assign case and mediate; liberty to contest conditioned upon clearing maint

Neha Patney Kapoor Vs Dheeraj Kapoor — Matrimonial and Divorce | Punjab & Haryana HC (2023)

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T.A.No.329 of 2023 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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103 TA No.329 of 2023 (O&M) Date of decision: 16.03.2023 Neha Patney Kapoor ...Petitioner Vs Dheeraj Kapoor ...Respondent

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CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

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Present:- Mr. Sanjay Verma, Advocate for the petitioner.

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NIDHI GUPTA, J.(Oral)

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Prayer in this petition filed by petitioner is for transfer of petition bearing No.HMA-536 of 2022 filed by respondent-husband under Section 9 of the Hindu Marriage Act, 1955, titled ‘Dheeraj Kapoor vs. Neha Patney Kapoor’ pending in the court of Principal Judge, Family Court, Yamunanagar at Jagadhri to a court of competent jurisdiction at Gurugram.

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Learned counsel for the petitioner, inter alia, submits:

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i) that the parties solemnized marriage on 27.11.2015. ii) that one son was born out of the wedlock. iii) that the petitioner along with minor son is living with her parents at Gurugram and as per Annexure P3, minor son is studying in Gurugram.

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iv) that as per medical report of the petitioner (Annexure P2) she is handicapped and partly blind.

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v) that the petitioner has no source of income.

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vi) that the distance between the place of residence and place of proceedings is 250 kms (one side).

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I have heard learned counsel for the petitioner.

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Besides the facts as noticed hereinabove, the legal position in

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such like cases as the present one is also very clear. Reference in this

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ASHOK KUMAR 2023.03.22 16:34 I attest to the accuracy and integrity of this document

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T.A.No.329 of 2023 (O&M)

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regard may be made in particular, to judgment rendered by the Hon’ble Supreme Court, in case of N.C.V. Aishwarya vs A.S. Saravana Karthik Sha,” 2022 Live Law (SC) 627 , wherein the Hon’ble Supreme Court has held as under:-

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“9. 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 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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Further reliance can be placed upon the judgments in “Sumita

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Singh vs Kumar Sanjay”, 2002 SC 396 and “Rajani Kishor Pardeshivs Kishor Babulal Pardeshi”, 2005(12) SCC 237 , wherein the Hon’ble Supreme Court has observed that “while deciding the transfer application, the Courts are required to give more weightage and consideration to the convenience of the female litigants and transfer of legal proceedings from one Court to another should ordinarily be allowed, taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships.”

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ASHOK KUMAR 2023.03.22 16:34 I attest to the accuracy and integrity of this document

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T.A.No.329 of 2023 (O&M)

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Even this Court in number of cases has followed the aforesaid principle of law. Accordingly, it is well settled that while considering the transfer of a matrimonial dispute/case, at the instance of the wife, the Court is to consider the family condition of the wife, the custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important the convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place to and fro from her place of residence as well as bearing of the litigation charges and travelling expenses.

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After going through the entire paperbook, considering the fact that issuance of notice to the respondent has the consequences of staying further proceedings before the trial Court, otherwise the petitioner-wife will have to bear the litigation expenses and transportation expenses and in case, notice of motion is issued, even the respondent-husband has to bear the litigation expenses and in view of the judgments i.e. Sumita Singh’s case (supra), Rajani Kishor Pardeshi’s case (supra) and N.C.V. Aishwarya’s case (supra) passed by the Hon’ble Supreme Court, this Court deems it appropriate to allow the present petition, subject to the following conditions:-

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a) The petition bearing No.HMA-536 of 2022 filed by respondent-husband under Section 9 of the Hindu Marriage Act, 1955, titled ‘Dheeraj Kapoor vs. Neha Patney Kapoor’ pending in the court of Principal Judge, Family Court, Yamunanagar at Jagadhri is transferred to a court of competent jurisdiction at Gurugram.

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ASHOK KUMAR 2023.03.22 16:34 I attest to the accuracy and integrity of this document

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T.A.No.329 of 2023 (O&M)

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b) The ld. District Judge, Yamunanagar is directed to transfer complete record pertaining to the aforesaid case to District Judge, Gurugram.

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c) The parties are directed to appear before the District

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& Sessions Judge, Gurugram on 11.04.2023.

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d) The District Judge, Gurugram will assign the said petition to the Court of competent jurisdiction.

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The concerned Court at Gurugram will make all endeavour to refer the case before the Mediation and Conciliation Centre for exploring the possibility of some amicable settlement between the parties.

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The Court concerned, where the litigation pending between the parties, will accommodate them with one date in one calendar month.

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However, liberty is granted to the respondent to revive this petition, if he intends to contest the same, provided that:-

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(a) The respondent will clear all arrears of maintenance amount, if any, in terms of any petition filed by the petitioner either under Section 125 Cr.P.C. or Section 12 of the Domestic Violence Act or Section 24 of the Hindu Marriage Act.

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(b) The respondent will file an affidavit giving undertaking to pay Rs.1,000/- per day, to petitioner for attending the Court proceedings at Yamunanagar on each and every date of hearing.

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(c) The respondent will bring a demand draft of Rs.25,000/-, drawn in favour of petitioner, towards the litigation expenses to pursue the case at Courts,

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ASHOK KUMAR 2023.03.22 16:34 I attest to the accuracy and integrity of this document

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T.A.No.329 of 2023 (O&M)

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Yamunanagar, in case the respondent opts to contest this petition.

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I am supported in the above by decisions rendered by a Coordinate Bench of this Court in TA No. 1315/2022, Rohini Arora v Nitin Talwar; TA No. 1322 of 2022, Jaswinder Kaur v Gurvinderjeet Singh ; and TA No. 1323 of 2022, Usha Rani v Karmajit Singh.

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As already noticed above, since the petition is being disposed of without issuing notice to the respondent, accordingly, in these peculiar circumstances, in order to ensure appearance of the parties before the District Judge, Gurugram on 11.04.2023, it is directed that a copy of this order be sent to the respondent(s) through registered post, besides sending a copy of this order to the District Judges concerned through e- mail. Petitioner through her counsel, present in the Court, is directed to ensure her appearance accordingly.

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Disposed of.

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Pending application, if any, be also disposed of.

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16.03.2023 (Nidhi Gupta) ashok Judge Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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ASHOK KUMAR 2023.03.22 16:34 I attest to the accuracy and integrity of this document

Neha Patney Kapoor v. Dheeraj Kapoor

Case brief

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Neha Patney Kapoor v. Dheeraj Kapoor

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