Allowed

Pushpa v. Sorabh Kumar@Sourabh

Punjab & Haryana HC28 Mar 2023TA/389/2023

Case brief

AI extract

What is this about?

This conversion application was allowed transferring the husband’s Section 9 petition from Mahendergarh to Gurugram. The Hon’ble Court prioritized the wife’s convenience and economic soundness, aligning with Supreme Court precedents. A copy was sent to the respondent without issuing a formal notice.

What did the court decide?

Transfer of the Section 9 petition from Mahendergarh to Gurugram; direction to transfer records; direction for final assignment by District Judge, Gurugram.

Pushpa Vs Sorabh Kumar@Sourabh — Matrimonial and Divorce | Punjab & Haryana HC (2023)

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T.A.No. 389 of 2023 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Transfer Application No. 389 of 2023 Date of decision: 28.03.2023

Pushpa

……….Petitioner

Sorabh Kumar alias Sourabh

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………..Respondent

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CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

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Present:Ms. Apoorva Arya, Advocate for the petitioner.

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NIDHI GUPTA, J.(Oral)

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Prayer in this petition filed by petitioner-wife is for transfer of the petition filed by respondent-husband under Section 9 of the Hindu Marriage Act,1955 (for short ‘the Act’) titled “Sorabh vs. Pushpa” pending in the Court of Principal Judge, Family Court, Kanina, District Mahendergarh to a Court of competent jurisdiction at Gurugram.

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Learned counsel for the petitioner submits :-

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i) That the parties were married on 19.2.2019 according to Hindu rites and rituals.

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ii) That two male children were born to the parties out of the wedlock, unfortunately the elder child died untimely and the younger minor child is in the care and custody of the petitioner.

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VIJAY ASIJA 2023.04.25 10:11 I attest to the accuracy and integrity of this document

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iii) That the petitioner-wife is living separately from the respondent-husband and living with her parents at their mercy at Gurugram.

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iv) That the petitioner is unemployed, having no source of income and totally dependent upon her parents and the respondent-husband is not paying anything to her towards maintenance.

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v) That the proceedings between the parties arising out of FIR No.67 dated 11.11.2022, under Sections 354-A, 498A, 506 and 34 IPC, registered at Women Police Station, Manesar, District Gurugram, filed by the petitioner-wife, are pending in the Courts having competent jurisdiction at Gurugram.

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vi) That the distance between place of residence of the petitioner-wife i.e. Gurugram and the place of proceedings under Section 9 of the Act, filed by the respondenthusband, pending before the Principal Judge, Family Court, Kanina, District Mahendergarh, is about 88 kilometers one side.

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It is inter alia on these grounds that petitioner prays for

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transfer of the case, as detailed in para 1 above.

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I have heard learned counsel for the petitioner.

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Besides the facts as noticed hereinabove, the legal

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position in such like cases as the present one, is well established. In this regard, judgment of the Hon’ble Supreme Court rendered in

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N.C.V. Aishwarya vs A.S. Saravana Karthik Sha,” 2022 Live Law

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(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

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T.A.No. 389 of 2023 (O&M)

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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

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“Sumita 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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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

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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

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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 paper-book, 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 filed by respondent husband under Section 9 of Act, bearing No. HMA/75/06.09.2022 titled as ‘Sorabh vs. Pushpa’, pending in the Court of Principal Judge, Family Court, Kanina, District Mahendergarh is transferred to a Court of competent jurisdiction at Gurugram.

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b) The ld. District Judge, Mahendergarh 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 & Sessions Judge, Gurugram on 24.4.2023.

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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

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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 is 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 the petitioner for attending the Court proceedings at District Courts, Mahendergarh 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 District Mahendergarh in case the respondent opts to contest this petition.

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I am supported by the decisions rendered by a Co-ordinate

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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 24.4.2023, it is directed that a copy of this order be sent to the respondent through registered

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post, besides sending a copy of this order to the District Judges concerned through e-mail. Petitioner through her counsel, present in

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the Court, is directed to ensure her appearance accordingly.

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