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2015 DIGILAW 1327 (HP)

Anupam Gupta v. Dharmender Gupta

2015-09-18

TARLOK SINGH CHAUHAN

body2015
Judgment Tarlok Singh Chauhan, J. This petition under Section 24 of the Civil Procedure Code read with Article 227 of the Constitution of India has been filed by the petitioner for transfer of the proceedings pending before the learned Civil Judge (Senior Division), Kasauli, District Solan, under Section 25 of the Guardians and Wards Act, 1890, (for short the ‘Act’) to the Court of learned Civil Judge, Nurpur, District Kangra. 2. The petitioner is a resident of Tehsil Nurpur and was married to respondent on 04.11.2008. But, on account of matrimonial differences, the parties are not only living separately, but are also involved in several litigations. The respondent has instituted proceedings under Section 25 of the Act, giving rise to the instant petition and apart therefrom there was one petition under Section 13 of the Hindu Marriage Act between the parties which has since been ordered to be transferred by this Court from the Court of learned District Judge, Solan to the Court of learned District Judge, Kangra at Dharamshala. 3. Petitioner has sought transfer of proceedings on the grounds of inconvenience, insufficiency of means, compulsive litigation and on the ground that she has to look after three year old child, making it difficult for her to attend the Court at Kasauli. 4. The respondent has though not filed any reply to this petition, but has vehemently argued that mere inconvenience of a party cannot be a ground to transfer the proceedings. I have heard the learned counsel for the parties and gone through the records of the case. 5. Ms. Megha Kapur Gautam, learned counsel for the petitioner, has strenuously argued that in matrimonial proceedings and other proceedings which are outcome of matrimonial discord ( like the instant petition filed under the Guardians and Wards Act ), it is the convenience of the wife which has to be looked at. 5. Ms. Megha Kapur Gautam, learned counsel for the petitioner, has strenuously argued that in matrimonial proceedings and other proceedings which are outcome of matrimonial discord ( like the instant petition filed under the Guardians and Wards Act ), it is the convenience of the wife which has to be looked at. In support of her contentions, strong reliance has been placed upon the judgments of the Hon’ble Supreme Court in Sumita Singh versus Kumar Sanjay and another (2001) 10 SCC 41, Soma Choudhury versus Gourab Choudhaury (2004) 13 SCC 462 , Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi (2005) 12 SCC 237, Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others (2008) 3 SCC 659 , Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta (2008) 9 SCC 353 and Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374 . 6. In Sumita Singh versus 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 versus 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 versus 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. 8. In Rajani Kishor Pardeshi versus 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 applicati on for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh versus 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. 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 versus 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 versus 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. From the conspectus of the aforesaid judgments the broad consensus that emerges is that in dispute of the present kind where the petitioner is residing with her father alongwith her three year old minor child, it is the convenience of the petitioner which is required to be considered over and above the inconvenience of the husband. 13. But then once the petitioner and the husband are attending the proceedings under Section 13 of Hindu Marriage Act pursuant to directions to this effect by this Court at Dharamshala, then does it mean that the proceedings should be transferred to Nurpur and not Dharamshala where the parties are already litigating only because the petitioner is residing at Nurpur. The answer to this is definitely in the negative for the simple reason that here even the inconvenience of the respondent will have to be taken into consideration. 14. The answer to this is definitely in the negative for the simple reason that here even the inconvenience of the respondent will have to be taken into consideration. 14. In view of the aforesaid discussion, the present petition is partly allowed and the proceedings pending before the learned Civil Judge (Senior Division), Kasauli, District Solan, H.P. under Section 25 of the Guardians and Wards Act, 1890, titled Dharmender Gupta versus Anupam Gupta, are ordered to be transferred to the Court of learned Civil Judge, Kangra at Dharamshala. The parties through their counsel(s) are directed to appear before the learned Civil Judge (Junior Division), Kangra at Dharamshala, on 26.10.2015. Pending application, if any, also stands disposed of.