CMPMO/616/2023 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.616 of 2023. Date of decision: 29.12.2023. Raj Kumari @ Parul …..Petitioner.

Versus Manoj Kumar …..Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 No For the Petitioner : Mr.

Hamender

Singh Chandel, Advocate. For the Respondent : Mr. Ashok K. Tyagi, Advocate. Tarlok Singh Chauhan, Judge

(Oral) This petition under Article 227 of the Constitution of India read with Section 24 of the Code of Civil Procedure has been filed on behalf of the petitioner-wife seeking transfer of case HMA No. 47 of 2022 titled Manoj Kumar vs. Raj Kumari from the Court of learned Principal Judge, Family Court, Mandi, District Mandi, H.P. to the court of learned Additional Principal Judge, Family Court, Ghumarwin, District Bilaspur, H.P. 1Whether the reporters of the local papers may be allowed to see the Judgment?Yes

2. The undisputed facts of the case are that marriage between the parties was solemnized in accordance with the Hindu Rites and Customs on 25.11.2020. Shortly thereafter, there appears to have been a matrimonial discord, as is evident from the fact that the petitioner filed a report with the Women’s Commission and thereafter filed a case under the Domestic Violence Act and subsequently filed a petition under Section 125 Cr.P.C. for grant of maintenance and all these proceedings are pending consideration before the Courts at Ghumarwin.

3. As regards the respondent, he has filed a divorce petition under Section 13 of the Hindu Marriage Act which is pending adjudication before the learned Principal Judge, Family Court at Mandi.

4. It is not in dispute that the petitioner is unemployed and is presently residing with her sister and, thus, is not in a position to attend the Court hearings at Mandi, whereas, the respondent is working in a private concern at Baddi.

5. It is more than settled that in matters like the instant kind, it is the convenience of the wife which has to be preferred over the convenience of the husband.

6. In Sumita Singh vs. Kumar Sanjay and another (2001) 10 SCC 41, it was held by the Hon’ble Supreme Court

that in a case where the wife seeks transfer of the petition, then as against husband’s convenience, it is the wife’s convenience which must be looked at.

7. In Soma Choudhury vs. Gourab Choudhaury (2004) 13 SCC 462, it was held by the Hon’ble Supreme Court that once the wife alleges that she has no source of income whatsoever and was entirely dependent upon his father, who was a retired government servant, then it was the convenience of the wife which was required to be looked into and not that of the husband, who had pleaded a threat to his life. It was further observed that if the respondent therein had any threat to his life, he could take police help by making an appropriate application to this effect.

8. In Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi (2005) 12 SCC 237, in a case seeking transfer of the case at the instance of the wife, it was specifically held by the Hon’ble Supreme Court that convenience of wife was the prime consideration.

9. Similarly, while dealing with the application for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others (2008) 3 SCC 659, the Hon’ble Supreme Court after

analyzing the provisions of Sections 24 and 25 of the Code of Civil Procedure laid down certain broad parameters for transfer of cases and it was held:- “23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; “interest of justice” demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a “fair trial” in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.”

10. In Arti Rani alias Pinki Devi and another vs. Dharmendra Kumar Gupta (2008) 9 SCC 353, the Hon’ble Supreme Court was dealing with a case where the wife had

sought transfer of proceedings on the ground that she was having a minor child and it was difficult for her to attend the Court at Palamu, Daltonganj, which was in the State of Jharkhand and at a quite distance from Patna where she was now residing with her child. Taking into consideration the convenience of the wife, the proceedings were ordered to be transferred.

11. Similarly, in Anjali Ashok Sadhwani vs. Ashok Kishinchand Sadhwani AIR 2009 SC 1374, the wife had sought transfer of the case to Bombay from Indore in Madhya Pradesh on the ground of inconvenience as there was none in her family to escort her to Indore and on this ground the proceedings were ordered to be transferred.

12. In N.C.V. Aishwarya vs. A.S. Saravana Karthik Sha AIR 2022 SC 4318, the Hon’ble Supreme Court held as under: “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 socio- economic paradigm in the Indian society, generally, it is the wife’s convenience which must be looked at while considering transfer.”

13. From the conspectus of the aforesaid judgments, the broad consensus that emerges is that in dispute of the present kind where the petitioner-wife is residing in her parental house, it is her convenience that is required to be considered over and above the inconvenience of the husband, who in the instant case is working in a private Company at Baddi.

14. Accordingly, the present petition is allowed. The proceedings i.e. Case HMA No.47 of 2022 titled as Manoj Kumar vs. Raj Kumari is ordered to be transferred from the Court of the learned Principal Judge, Family Court, Mandi to the Court of the learned Additional Principal Judge, Family Court, Ghumarwin, District Bilaspur, H.P.

15. The parties through their counsel(s) shall appear before the Court of the learned Additional Principal Judge, Family Court, Ghumarwin, District Bilaspur, H.P. on 19.01.2024.

16. Pending application, if any, also stands disposed of. (Tarlok Singh Chauhan)

Judge 29th December, 2023. (krt)