Allowed

Pooja Songar v. Amit Kumar

Punjab & Haryana HC17 Apr 2023TA/449/2023

Case brief

AI extract

What is this about?

In a transfer of application under Section 9 of the Hindu Marriage Act, the High Court of Punjab and Haryana allowed the transfer of proceedings from Ludhiana to Patiala in the interest of the wife, invoking Supreme Court precedents, while imposing conditions for future litigation expenses and maintenance.

What did the court decide?

The petition for transfer of the matrimonial petition from Ludhiana to Patiala was allowed; the complete record directed to be transferred; parties directed to appear on 24.05.2023 before the District

Pooja Songar Vs Amit Kumar — Matrimonial and Divorce | Punjab & Haryana HC (2023)

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T.A.No.449 of 2023 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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2023:PHHC:052430

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106 TA No.449 of 2023 (O&M) Date of decision: 17.04.2023

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Pooja Songar ...Petitioner

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Amit Kumar ...Respondent

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CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

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Present:- Mr. Karan Monga, Advocate for Mr. Vishal Mittal, 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/3166/2021 filed by respondent-husband under

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Section 9 of the Hindu Marriage Act, 1955, titled ‘Amit Kumar vs. Pooja Songar’ pending in the Court of the Principal Judge, Family Court, Ludhiana to a court of competent jurisdiction at Patiala.

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Learned counsel for the petitioner, inter alia, submits:

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i) that the parties solemnized marriage on 14.05.2021.

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ii) that one son was born out of the wedlock on 03.11.2022.

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iii) that the petitioner along with minor son is living with her parents at Patiala.

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iv) that the distance between the place of residence and place of proceedings is 94 kms (one side).

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v) that the petitioner has no source of income.

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vi) that the petitioner is suffering from primary infection of Tuberculosis.

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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 2023.04.24 11:17 I attest to the accuracy and integrity of this document

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T.A.No.449 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 2023.04.24 11:17 I attest to the accuracy and integrity of this document

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T.A.No.449 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/3166/2021 filed by respondent-husband under Section 9 of the Hindu Marriage Act, 1955, titled ‘Amit Kumar vs. Pooja Songar’ pending in the Court of the Principal Judge, Family Court, Ludhiana is transferred to a court of competent jurisdiction at Patiala.

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ASHOK KUMAR 2023.04.24 11:17 I attest to the accuracy and integrity of this document

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T.A.No.449 of 2023 (O&M)

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

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c) The parties are directed to appear before the District

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& Sessions Judge, Patiala on 24.05.2023.

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

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The concerned Court at Patiala 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 Ludhiana 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 2023.04.24 11:17 I attest to the accuracy and integrity of this document

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T.A.No.449 of 2023 (O&M)

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Ludhiana, 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, Patiala on 24.05.2023, 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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17.04.2023 (Nidhi Gupta) ashok Judge Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

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ASHOK KUMAR 2023.04.24 11:17 I attest to the accuracy and integrity of this document

Pooja Songar v. Amit Kumar

Case brief

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Pooja Songar v. Amit Kumar

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