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Himachal Pradesh High Court · body

2015 DIGILAW 1523 (HP)

Ritu Kumari v. Rajveer Singh

2015-10-15

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. Notice was issued to the respondent. There is no representation on his behalf. 2. “Key facts” necessary for the adjudication of this petition are that marriage between the parties was solemnized on 20.4.2008. Petitioner gave birth to baby Kashish on 31.1.2010. Petitioner was harassed by the respondent as well as by his parents for bringing insufficient dowry. Respondent has not provided maintenance either to the petitioner or her baby. Kashish is studying in St. Mary’s Convent School, Kasauli. Petitioner is also working in the school. The amount earned by her is not sufficient to meet the expenditure. She has to give monthly rent of accommodation. She has to bear the monthly expenditure of her daughter. Respondent is working in Merchant Navy. He is owner of three bed rooms flat at Bhayander, Meera Road, Mumbai. 3. Petitioner was constrained to move an application under section 125 of the Code of Criminal Procedure and also an application under sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005. These proceedings are pending before the courts at Kasauli against the respondent. Respondent has filed petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights against the petitioner in the court of Civil Judge (Senior Division), Dehra bearing Petition No.10/2014. 4. Petitioner has sought transfer of the proceedings pending before the Civil Judge (Senior Division), Dehra under section 9 of the Hindu Marriage Act to the court of Civil Judge (Senior Division), Kasauli. 5. Their Lordships of the Hon’ble Supreme court in Guda Vijayalakshi vs. Guda Ramachandra Sekhara Sastry, AIR 1981 SC 1143 have held that it cannot be said that the substantive provision contained in section 25, Civil P.C. is excluded by reason of section 21 of the Hindu Marriage Act, 1955. Their Lordships have held as under: “[3] In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25 C. P. C. is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25 C. P. C. is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. Section 21 of the Hindu Marriage Act merely provides: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms Section 21 does not make any distinction between procedural and substantive provisions of C. P. C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means, and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into S. 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law. (See: Canadian and Dominion Sugar Co., Ltd. v. Canadian National (West Indies) Steamships, Ltd. (1947) AC 46, at p. 56 (P. C.).” 6. The Division Bench of Calcutta High Court in Sm. Pritikona Banerjee vs. Rabi Shankar Banerjee, AIR 1987 Calcutta 269 has held that section 21-A provides for joint and consolidated trail in certain cases. The said provision is not exhaustive. The Division Bench of Calcutta High Court in Sm. Pritikona Banerjee vs. Rabi Shankar Banerjee, AIR 1987 Calcutta 269 has held that section 21-A provides for joint and consolidated trail in certain cases. The said provision is not exhaustive. Therefore, where only one petition filed by the husband for restitution of conjugal rights was pending in the court of the District Judge and neither party had presented either in the court of the District Judge or in other District Court any other proceeding specified in section 21-A, an application by the wife before the High Court under section 24 for transfer of the proceeding from the Court of the District Judge to some other District Court would be maintainable. Section 21-A has no application. The Division Bench has held as under: “[1] The defendant wife made this application under Section 24 of the Civil Procedure Code, 1908 for transfer of Matrimonial Suit No. 77 of 1985 filed by the plaintiff opposite party husband for restitution of conjugal rights in the learned District Judge's Court, Howrah. Mr. Banerjee, appearing on behalf of the plaintiff opposite party husband has raised a preliminary objection to the maintainability of this application under Section 24 of the Civil Procedure Code on the ground that the special provision to transfer petition contained in Section 21A of the Hindu Marriage Act has by implication ousted the jurisdiction of this Court under Section 24 of the Act in the matter of transfer of matrimonial proceedings. We are unable to agree. In the first place, the conditions for applicability of Section 21A of the Hindu Marriage Act are not present in the present case. Only one matrimonial proceeding instituted by plaintiff husband is pending in the learned District Judge's Court, Howrah. Neither party has presented either in the District Judge's Court, Howrah or in other District Court any other proceeding specified in Section 21A of the Hindu Marriage Act. We are relieved of the necessity of giving further reasons because Mr. Banerjee appearing on behalf of the plaintiff opposite party himself has drawn our attention to the decision of the Supreme Court in Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry, . We are relieved of the necessity of giving further reasons because Mr. Banerjee appearing on behalf of the plaintiff opposite party himself has drawn our attention to the decision of the Supreme Court in Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry, . Tulzapurkar, J. delivering the judgment of the Court inter alia held that the case in Smt. Rama Kanta v. Ashok Kumar, reported in and also the case of Priyavari Mehta v. Priyanath Mehta, reported in were not correctly decided and had accordingly overruled them. The learned Judge clearly recognised a stand in which Section 21A would be inapplicable and the resort will have to be (had) to the powers under Sections 23 to 25 of the Civil Procedure Code for directing transfer of petitions for consolidated hearing. It was further held that Section 21A of the Act provided for joint and consolidated trial in certain cases and the said provision was not exhaustive. The above decision of the Supreme Court being binding upon us we are unable to entertain any contrary submission regarding the scopes of Section 21A of the Hindu Marriage Act and of Section 24 of the Civil Procedure Code. [2] We proceed to consider whether in the interest of justice the matrimonial proceedings now pending in the learned District Judge's Court, Howrah ought to be transferred. We have taken due consideration of the fact that the defendant petitioner wife resides in a remote village in the district of Birbhum and that she would be seriously inconvenienced if she was to frequently come to Howrah for contesting the matrimonial suit. Not only there would be hazards of travel over a fairly long distance but also Court may take judicial notice of the acute difficulty of obtaining accommodation except at considerable costs in the town of Howrah. At the same time we are not unmindful of the difficulty which the plaintiff husband may face by reason of the matrimonial suit being transferred to Suri from Howrah where he is at present working. Therefore, after considering all aspects of the matter we direct that the Matrimonial Suit No. 77 of 1985 be transferred from the Court of the learned District Judge, Howrah to the Court of the learned District Judge, Burdwan from the point at which the suit had been pending till this order of transfer was made. Therefore, after considering all aspects of the matter we direct that the Matrimonial Suit No. 77 of 1985 be transferred from the Court of the learned District Judge, Howrah to the Court of the learned District Judge, Burdwan from the point at which the suit had been pending till this order of transfer was made. The learned District Judge may try the suit or may transfer the suit to the learned Additional District Judge's Court at Burdwan. The suit be expeditiously disposed of in accordance with law. To expedite the hearing we direct the defendant wife to file her written statement in the learned District Judge's Court, Burdwan within two months from this date. The learned District Judge will be at liberty to extend the time in case sufficient cause is made out. Both parties waive service of notice. We express no opinion on the merits. The learned District Judge, Howrah will transmit the records to the Court of the learned District Judge, Burdwan expeditiously.” 7. Their Lordships of the Hon’ble Supreme Court in Deepa vs. Anil Panicker, (2000) 9 SCC 441 have held in a case where wife was staying at Trichur, expressing her financial as well as physical inability to contest the petition at Ranchi, in view of these circumstances their Lordships had transferred the petition from the court of the Judicial Commissioner, Ranchi to the Matrimonial Court, Tirchur. 8. Learned Single Judge of Madras High Court in Baby Chitra vs. K. Radhakrishnan, 2005 (1) Hindu Law Reporter 51 has held that in matrimonial like cases, convenience of wife must be given utmost importance. Learned Single Judge has held as under: “3. The learned counsel appearing on behalf of the respondent, though has no objection to transfer the case from Chennai to Madurai as sought from her, he has very serious objection to offer regarding the averments and the allegations made in the petition for transfer. Of course, they are subject to an order passed in the main O.P. and the parties could contest the same in the main O.P. itself. So far as the transfer of the main O.P. filed by the husband in the Family Court, Madras seeking divorce is concerned, it is only desirable to transfer the same to the Family Court, Madurai. Of course, they are subject to an order passed in the main O.P. and the parties could contest the same in the main O.P. itself. So far as the transfer of the main O.P. filed by the husband in the Family Court, Madras seeking divorce is concerned, it is only desirable to transfer the same to the Family Court, Madurai. Since the petitioner is the permanent resident o Madurai and it is also not fair on the part of the Court to order a lady to travel such a long distance for showing appearance on each ad every hearing ad the feasibility is only to have the case decided by a Court of her own place and hence it is only desirable to transfer the case from Family Court, Chennai to Madurai Family Court, as it is prayed for on the part of the petitioner.” 9. Learned Single Judge of Punjab and Haryana High Court in Kiran Bala vs. Ram Phal, 2005 (2) Hindu Law Reporter 410 has held that while considering the question of transfer of matrimonial proceedings regard must be had to the convenience of wife. Learned Single Judge has held as under: “[3] Counsel for the petitioner relying upon a number of decisions of the Supreme Court in Rachna Kanodia v. Anuk Kanodia, 2002(1) M.L.J. 86 (S.C.); Neelam Kanwar v. Davinder Singh Kanwar, 2001(1) M.L.J. 509 (S.C.); Archna Singh v. Alok Partap Singh, 2002(2) M.L.J. 568 and Savitri v. Hari Chand, contended that in these cases the Supreme Court ordered transfer of matrimonial proceedings at or near the place where the wife was residing and while doing so, due consideration was given to the convenience of the wife. The counsel, thus, submitted that in view of the facts stated in the petition and the observations of the Supreme Court in the above referred cases, the prayer of the petitioner deserves to be accepted. Counsel for the respondent on the other hand opposed the prayer made in the petition. [4] I have heard counsel for the parties and perused the record, I have also gone through the judgments cited by the counsel for the petitioner. In all these decisions all that has been observed in a single tone is that while considering the question of transfer of matrimonial proceedings, regard must be had to the convenience of the wife. [4] I have heard counsel for the parties and perused the record, I have also gone through the judgments cited by the counsel for the petitioner. In all these decisions all that has been observed in a single tone is that while considering the question of transfer of matrimonial proceedings, regard must be had to the convenience of the wife. In the said cases, the proceedings which were pending at very distant place and even in the Courts of a different State have been ordered to be transferred to or near the place where the wife was residing. Mere incorporation of observations made by the Supreme Court made in all of the aforesaid decisions would unnecessarily burden this order. However, the observations of the Supreme Court in Neelam Kanwar's case (supra) are being noticed 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 reasons not to do so. No special reason is shown." Having regard to the observations of the Apex Court in the above cases and in the facts of this case which have neither been denied or controverted by the respondent, the petition deserves to be accepted.” 10. In view of definitive law cited hereinabove, the Court is of the considered view that it would be difficult for the petitioner to travel Dehra to defend the case pending before the Civil Judge (Senior Division), Dehra. The studies of the child would also be effected. Petitioner would also be put to immense hardships while travelling from Kasauli to Dehra. She has to take leave in order to reach Dehra from Kasauli. Petitioner has also to incur expenditure while travelling from Kasauli to Dehra. The atmosphere of Kasauli would be more congenial to her where two proceedings instituted against the respondent under section 125 of the Code of Criminal Procedure and under sections 12, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 are already pending. 11. Accordingly, the petition is allowed. Petition No.10/2014 pending before the Civil Judge (Senior Division), Dehra is withdrawn and transferred to the court of Civil Judge (Senior Division), Kasauli. 11. Accordingly, the petition is allowed. Petition No.10/2014 pending before the Civil Judge (Senior Division), Dehra is withdrawn and transferred to the court of Civil Judge (Senior Division), Kasauli. The parties are directed to appear before the Civil Judge (Senior Division), Kasauli on 6.11.2015. Pending application(s), if any, also stands disposed of. No costs.