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2011 DIGILAW 702 (PNJ)

Aarti Sharma v. Rajesh Sharma

2011-03-03

JITENDRA CHAUHAN

body2011
JUDGMENT Mr. Jitendra Chauhan, J. (Oral).- This judgment of mine shall dispose of two applications, viz., TA No.569 of 2010 and TA No.95 of 2011, as the same are based upon common facts between the same parties. However, the facts are being derived from TA No.569 of 2010. 2. The present application has been filed under Section 24 of the Code of Civil Procedure, for transfer of petition titled as ‘Rajesh Sharma Vs. Aarti Sharma’, filed by the respondent under Section 9 of the Hindu Marriage Act, 1955 (for short `the Act’), from the Court of learned Additional Civil Judge, Senior Division, Ludhiana, to the Court of competent jurisdiction at Karnal. 3. The applicant is a resident of Karnal. She has filed a petition under Section 13 of the Act, which is pending adjudication before the Court of learned Additional District Judge, Karnal. She is raising her two minor sons born out of the wedlock between the parties, one of whom is physically and mentally challenged. Her father has since died and mother is residing at Panipat. She is living at the mercy of her grandmother and disabled uncle at Karnal. It is contended that the respondent has filed the petition under Section 9 of the Act, at Ludhiana, only to harass the applicant. 4. Learned counsel for the respondent has vehemently opposed the prayer. 5. I have heard the learned counsel for the parties. 6. From the perusal of Annexure P-2, it is made out that the son born out of the wedlock between the parties, is physically and mentally challenged child. He is enrolled with the Viklang Shishu Prashikshan Kendra, Karnal. It would certainly be difficult for the wife, living at the mercy of her relatives, having no source of income and saddled with the responsibility of raising her minor sons, to attend the court proceedings at Ludhiana. The petition filed by the applicantwife is prior in time. 7. Hon’ble the Supreme Court in Neelam Kanwar vs Devinder Singh Kanwar, 2001(1) M.L.J. 509 (SC), has observed as under:- “We are mindful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reason not to do so. No special reason is shown.” 8. No special reason is shown.” 8. Considering the fact that the applicant is a resident of Karnal and keeping in view the special requirements of the physically and mentally challenged child who is residing with the mother, in my opinion, the balance of convenience is in favour of the applicant-wife and against the respondent. Accordingly, the petition filed by the respondent titled as ‘Rajesh Sharma Vs. Aarti Sharma’ under Section 9 of the Act, pending in the Court of learned Additional Civil Judge, Senior Division, Ludhiana, deserves to be transferred to Karnal. 9. In view of the above, the instant transfer application is allowed and the petition under Section 9 of the Act titled as ‘Rajesh Sharma Vs. Aarti Sharma’ is withdrawn from the Court of learned Additional Civil Judge, Senior Division, Ludhiana, and is transferred to the Court of competent jurisdiction at Karnal. The entire record pertaining to the petition under Section 9 of the Act shall be sent by the trial Court at Ludhiana to the learned District Judge, Karnal, within three weeks, who will either himself dispose it of or entrust it to any other Court of competent jurisdiction. 10. The parties shall appear before the Court of learned District Judge, Karnal on 31.03.2011. 11. Consequently, the transfer application No.95 of 2011 filed by the respondent-husband for transfer of the case titled as ‘Smt. Aarti Sharma Vs. Rajesh Sharma’ from the Court of learned Additional District Judge, Karnal, to the Court of competent jurisdiction at Ludhiana, is hereby dismissed. ---------0.B.S.0------------