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Himachal Pradesh High Court · body

2015 DIGILAW 1967 (HP)

Manju Devi v. Dev Raj Sharma

2015-12-24

RAJIV SHARMA

body2015
JUDGMENT : RAJIV SHARMA, J. 1. This petition has been instituted for transfer of petition under section 9 of the Hindu Marriage Act from the court of learned Civil Judge (Junior Division), Arki bearing Case No. 1/3/2015 to the court of Civil Judge (Junior Division), Una. 2. Key facts necessary for the adjudication of this petition are that marriage between the petitioner and respondent was solemnized. Initially, they were residing at village Kurahu, Post Office Materni, Tehsil Arki, District Solan, H.P. They stayed at Dalraghat and thereafter shifted to Kiratpur and in the year 2009 shifted to Santokhgarh, District Una. The respondent left the company of petitioner in the year 2013 and came back to his ancestral house. The children of the petitioner are pursuing their studies in Sarswati Bal Mandir High School, Santokhgarh. 3. Respondent has instituted a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights in the court of Civil Judge (Junior Division), Arki. It would be difficult for the petitioner to contest the case at Arki. The distance between Arki and Santokhgarh, District Una is more than 100 KMs. It would also be difficult for her financially and physically to attend the Court at Arki. She has also applied for legal assistance as per Annexure P-3. It is in these circumstances the petitioner is seeking transfer of case from the court of Civil Judge (Junior Division) to the court of Civil Judge (Junior Division), Una. 4. Mr. J.L. Bhardwaj has vehemently opposed the petition. 5. 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, Trichur. 6. 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. 6. 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. 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.” 7. 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 vs. Anuk Kanodia, 2002 (1) M.L.J. 86 (SC); Neelam Kanwar vs. Davinder Singh Kanwar, 2001 (1) M.L.J. 509 (SC); Archna Singh vs. Alok Partap Singh, 2002 (2) M.L.J. 568 and Savitri vs. 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. 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.” 8. In view of definitive law cited hereinabove, the Court is of the considered view that it would be difficult for the petitioner to travel from Santokhgarh to defend the case pending before the Civil Judge (Junior Division), Arki. The studies of the children would also be effected. Petitioner would also be put to immense hardships while travelling from Santokhgarh to Arki. She has also to incur expenditure while travelling from Santokhgarh to Arki. 9. Accordingly, the petition is allowed. Case No. 1/3/2015 pending before the Civil Judge (Junior Division), Arki is withdrawn and transferred to the court of Civil Judge (Junior Division), Una. Petitioner would also be put to immense hardships while travelling from Santokhgarh to Arki. She has also to incur expenditure while travelling from Santokhgarh to Arki. 9. Accordingly, the petition is allowed. Case No. 1/3/2015 pending before the Civil Judge (Junior Division), Arki is withdrawn and transferred to the court of Civil Judge (Junior Division), Una. The parties, through their counsel, are directed to appear before the Civil Judge (Junior Division), Una on 15.1.2016. Pending applications, if any, also stands disposed of. No costs.