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2005 DIGILAW 260 (JK)

Sonia Kumari v. Karan Chand

2005-09-28

BASHIR AHMAD KIRMANI

body2005
1. Through medium of this petition, the petitioner seeks transfer of proceedings pending before learned District Judge, Kathua, under section 13 of Hindu Marriage Act, purporting to have been initiated by respondent for dissolution of marriage. Ground pleaded is that respondent has filed the aforesaid petition in the said court only to harass her after throwing her out of his house and that she being a resident of village Potha (Jourian), Tehsil Akhnoor, faces great inconvenience and difficulty in attending the Court at Kathua, which involves her night stay there because it is not practically possible for her to travel from her residence to Kathua and back in a single day. 2. Notice of this petition was served upon respondent, for whom Mr. Rajnesh Oswal, Advocate, appeared on 15.04.2004 and sought time for filing objections. Two weeks™ time was given, whereafter the matter came on board on 20.08.2004 when the counsel sought extension of time for filing of objections, whereupon the last opportunity of two weeks™ was granted. Despite that objections were not filed and when the matter again came on board on 14.07.2005, nobody appeared for the respondent nor were objections filed by him. Today also while the matter comes up, nobody is present on his behalf and the petitioner™s counsel contends that respondent™s repeated default in filing objections to the petition necessarily implies that he has no valid objection to advance. 3. I have heard learned counsel for the petitioner and considered the matter. In view of respondent™s repeated default in filing objections to the petition and now his absence, he is proceeded against in ex-parte and the matter is taken up for consideration on its own merit. 4. As a matter of fact, the petitioner who resides in village Potha (Jourian), Tehsil Akhnoor, is required to travel, in the first instance from the village of her residence to Jourian, and then to Akhnoor; wherefrom she has to come all the way to Jammu, and then proceed further from Jammu to Kathua; involving a total journey of around 150 kilometers. It hardly needs be said that undertaking such a long journey for court attendance, besides being hazardous, must be resulting in considerable expenditure and inconvenience to the petitioner, who has necessarily to spend two or even three days for assuring her appearance before the Court at Kathua. It hardly needs be said that undertaking such a long journey for court attendance, besides being hazardous, must be resulting in considerable expenditure and inconvenience to the petitioner, who has necessarily to spend two or even three days for assuring her appearance before the Court at Kathua. True, that her personal appearance before that Court on every hearing may not be necessary, but for looking after her case and effectively prosecuting the same, she would certainly be required to undertake the travel every now and then. As an unwanted wife, her claim of being resourceless can not be brushed aside lightly, and for that reason alone, if one may say, her prayer for transfer of the case from Kathua to Jammu deserves effective consideration. 5. Under section 21 of the Hindu Marriage Act, proceedings under section 13 can be instituted in a District Court within jurisdiction whereof either the marriage was solemnized, or the defendant resides at the time of institution of the proceedings; or the parties last resided together, or when conditions envisaged under clause IV thereof exist where the petitioner resides. That being so, techinically no bar exists against petitioners™ prayer for transfer of the case, particularly, in view of the fact, that inconvenience that might be caused to respondent by transfer of the case from Kathua to Jammu, would certainly be lesser than the one that is being faced by the petitioner by its pendency at Kathua. That being so the comparative balance of convenience also tilts in petitioner™s favour. 6. For what has been stated above, the petition is allowed and the aforesaid proceedings, presently pending in District Court Kathua are transferred to the Court of Principal District Judge, Jammu, who shall proceed thereupon in accordance with the law, after due notice to the parties. District Court Kathua shall transmit records of the case to the transferee court with reasonable dispatch. Petition is, accordingly, disposed of.