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2011 DIGILAW 616 (PNJ)

Anju v. Sanjay

2011-02-17

JITENDRA CHAUHAN

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JUDGMENT JITENDRA CHAUHAN.J (ORAL) - This order of mine shall dispose of two Transfer Applications filed under Section 24 of the Code of Civil Procedure bearing Nos. 548 of 2010 and 56 of 2011 titled “Anju Vs.Sanjay” filed by the applicant-wife (Anju) seeking transfer of the petitions filed by husband-respondent (Sanjay), under sections 10 and 25 of the Guardian and Wards Act for obtaining the custody of the minor sons of the parties pending adjudication in the Court of Civil Judge,Sr.Division, Jhajjar and the other filed under section 9 of the Hindu Marriage Act for restitution of conjugal rights pending at the Court of Additional District Judge, Jhajjar respectively to the courts of competent jurisdiction at Faridabad. 2. Learned counsel for the applicant-wife submits that from the inception of the marriage in February,1996, the respondent and his family members have been harassing and maltreating the applicant for bringing insufficient dowry. He further submits that applicant was given beatings by the respondent as a result of which she was compelled to leave the matrimonial home in May 2005. In July, 2005, a compromise was arrived between the parties and the applicant returned to her matrimonial home. He further submits that even thereafter, the respondent continued to harass and maltreat the applicant and ultimately threw her out of the matrimonial home on 15.4.2009.Thereafter, she had been residing with her parents at Faridabad alongwith her two minor sons. He submits that the respondent-husband had filed the petition at Jhajjar only to harass the applicant. He further submits that the respondent filed the petition under section 9 of the Hindu Marriage Act in the court of learned District Judge, Jhajjar. The applicant sought transfer of the said petition by filing Transfer Application No. 231 of 2009 in this Hon’ble Court, which was allowed 0n 26.11.2009. He also submits that the applicant filed a petition under section 125 Cr.P.C praying for maintenance for herself and her two minor sons, as she has no resources to look after her minor sons. He pointed out that to save his skin, the respondent withdrew the petition filed under section 9 of the Hindu Marriage Act in the Court of District Judge,Family Court, Jhajjar on 26.7.2010. He also pointed out that in reply to petition filed under Section 125 Cr.P.C, the respondent alleged that the applicant has deserted the respondent and left the matrimonial home on her own. He also pointed out that in reply to petition filed under Section 125 Cr.P.C, the respondent alleged that the applicant has deserted the respondent and left the matrimonial home on her own. He further submitted that thereafter the respondent filed a petition under section 10 & 25 of the Guardian and Wards Act for the custody of the minor sons, who are being brought up by the applicant-mother and are studying at Faridabad. He submitted that the applicant left with no option but to file a transfer application (No. 548 of 2010) praying for transfer of this petition also to Faridabad, as the minor sons, who go to the local school are residing with the applicant at Faridabad. He further submitted that the respondent again filed a petition under Section 9 of the Hindu Marriage Act for restitution of Conjugal Rights pending adjudication before the District Judge,Jhajjar (the subject-matter of this application). Learned counsel lastly submitted that respondent is still harassing and humiliating the applicant by filing one petition after the other, hence seeking transfer of the applications mentioned above. 3. On the other hand, learned counsel for the respondent alleged that the applicant deserted the respondent without his knowledge and consent and left the matrimonial home alongwith her minor sons without his knowledge and consent and started living at Faridabad with her parents since 15.4.2009. 4. The respondent earlier filed a petition under section 9 of he Hindu Marriage Act and after the order passed by this Court on 26.11.2009 transferring the said petition to the Court at Faridabad, he withdrew the same on 26.7.2010 by appearing in person and stating that he does not want to persue the said petition. Now, he has again filed the petition under Section 9 of the said Act for restitution of Conjugal Rights and the applicant-wife has sought transfer of the same to a court of competent court at Faridabad, where she is presently residing with her minor sons having no source of income and at the mercy of her parents. It is well settled principle of law that convenience of the wife has to be kept in view in such like matters as has been held in cases of Sumitra Singh v. Kumar Sanjay and another, AIR,2002, SC 396 and Neelam Kanwar v. Devinder Singh Kanwar, 2001(1) MLJ 509(SC.). It is well settled principle of law that convenience of the wife has to be kept in view in such like matters as has been held in cases of Sumitra Singh v. Kumar Sanjay and another, AIR,2002, SC 396 and Neelam Kanwar v. Devinder Singh Kanwar, 2001(1) MLJ 509(SC.). Even otherwise also, it would not be possible for the wife to go to Jhajjar with her minor sons on each and every date of hearing as the distance from Faridabad to Jhajjar is approximately 110 kms. whereas no prejudice is going to be caused to the respondent-husband by appearing in the courts at Faridabad. 5. Therefore, it would be in the interest of justice to transfer the petition filed under section 9 of the Hindu Marriage Act to a court of competent jurisdiction at Faridabad. 6. So far as the application under Section 10 & 25 of the Guardian & Wards Act for obtaining the custody of the minor sons by the husband is concerned, it is pertinent to reproduce the provisions of Section 9 of the Guardian and Wards Act that “if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.” In the instant case, the minor sons of the parties are residing with the applicant-mother at Faridabad since 15.4.2009 and are studying there.They are being brought up by their mother as their natural guardian. Therefore, it would be in the interest of justice to transfer this application to a court of competent jurisdiction at Faridabad. 7. Accordingly, both the petitions, titled as “Sanjay vs. Anju”,one filed under Section 9 of the Hindu Marriage Act pending in the court of Additional District Judge,Jhajjar and another filed under section 10 & 25 of the Guardian & Wards Act pending in the court of Civil Judge, Sr.Division, Jhajjar are withdrawn from the respective courts and are transferred to the Courts of competent jurisdiction at Faridabad. The files shall be sent by the trial Courts to the court of District Judge, Faridabad within two weeks from the date of receipt of copy of this order, who will either himself dispose of the same or entrust the same to any other court of competent jurisdiction at Faridabad. 8. With these observations, both the applications are allowed. 9. The files shall be sent by the trial Courts to the court of District Judge, Faridabad within two weeks from the date of receipt of copy of this order, who will either himself dispose of the same or entrust the same to any other court of competent jurisdiction at Faridabad. 8. With these observations, both the applications are allowed. 9. Parties are directed to appear before the District Judge, Faridabad on 17.3.2011.