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2015 DIGILAW 605 (JK)

Jatinder Kour v. Sharan Pal Singh

2015-11-19

DHIRAJ SINGH THAKUR

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JUDGMENT : Dhiraj Singh Thakur, J. 1. This is a petition filed under Section 24 of the Civil Procedure Code for transferring the petition under Section 13 of the Hindu Marriage Act from the court of 1st Additional District Judge, Srinagar to any other court of competent jurisdiction at Jammu. It is stated that the marriage between the parties was solemnized in Jammu in the year 2012 according to Sikh Customs and Rites. However, the petitioner came to be subjected to cruelty on account of demand of dowry, leading to her being thrown out from the matrimonial home situate at Channi Rama Jammu. 2. It is further stated that an FIR came to be registered at the behest of the petitioner bearing No. 42/2013 under Section 498-A read with 109 of the RPC whereafter a challan was produced and is pending in the court of learned Municipal Magistrate 1st Class, Jammu. It was also urged that the respondent herein was appearing before the trial court in the aforementioned case. 3. Proceedings under Section 488 Cr.P.C. for maintenance against the respondent are also stated to be pending in the court of learned Second Additional Munsiff, Jammu in which despite orders, the respondent was avoiding payment of the interim maintenance so ordered. 4. It is further stated that the respondent has his own house at Channi Rama, Jammu and that he was presently posted at Police Control Room, Parade ground Jammu. Documents in this regard have been placed on record. 5. It is stated that with a view to harass the petitioner, as a counter blast, a suit for divorce under Section 13 of the Hindu Marriage Act has been filed by the respondent, which is pending before the 1st Additional District Judge, Srinagar. 6. The petitioner has expressed difficulty to attend the proceedings at Srinagar by stating that she had no source of income of her own and that her parents were facing financial crisis, making it difficult to bear the expenses for attending and following her case at Srinagar. It was further urged that the father of the petitioner was suffering from Cancer and was confined to bed and therefore, there was no body who could accompany her to Srinagar, which was more than 300 KMs away from Jammu. 7. It was further urged that the father of the petitioner was suffering from Cancer and was confined to bed and therefore, there was no body who could accompany her to Srinagar, which was more than 300 KMs away from Jammu. 7. Per contra, the stand taken by the respondent in the present petition is that maintenance was being regularly paid to the petitioner pursuant to orders passed in proceedings under Section 488 Cr.P.C. and further it was not necessary for the petitioner to regularly visit the court at Srinagar and that the proceedings could be conducted by engaging a counsel. As regards posting of the respondent at Jammu, it is stated that he has in fact been attached at PCR Jammu on the basis of allegations leveled by the petitioner herself. 8. It is further stated that the parents of the respondent do not reside at Channi Rama as they are permanent residents of Village Tangmulla Baramulla. It is also stated that the respondent has no place to live in Jammu and is likely to be shifted back to Srinagar based upon a representation, which has been filed by the respondent. 9. Learned counsel for the petitioner has placed reliance upon Sumita Singh v. Kumar Sanjay & Anr., (2001) 10 SCC 41. What was stated in this judgment in paragraph 3 is reproduced hereunder: "3. It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute." 10. This was a case where the transfer petition had been filed by the wife seeking transfer of proceedings filed by her husband against her in Ara Bhojpur to Delhi on the ground that she was living and working in Delhi and would be unable to travel up and down from Delhi to Ara, which was at a distance of about 1100 kilometers from Delhi, to defend the matrimonial proceedings. Besides this, her case was that there was no one with whom she could stay in Ara because her parents were residents of Gurgaon. 11. Heard learned counsel for the parties. 12. Besides this, her case was that there was no one with whom she could stay in Ara because her parents were residents of Gurgaon. 11. Heard learned counsel for the parties. 12. In Reena Bahri v. Ajay Bahri, (2002) 10 SCC 136 , the Apex Court ordered the transfer of matrimonial proceedings filed by the husband from Delhi to Mumbai on the ground that the wife did not have anyone who could conveniently accompany her to Delhi. Besides this, a view was taken that since proceedings were already pending in Bombay which the husband had to defend, the transfer of the proceedings was ordered. 13. While the earlier view which held the field was that the convenience of the wife should be considered at the time of deciding as to whether matrimonial proceedings should be transferred in terms of the powers conferred under Section 24 of the Civil Procedure Code or not, subsequently, however in Anindita Das v. Srijit Das, 2006 (9) SCC 197 , it was held that the leniency shown to ladies in matters of transfer of matrimonial proceedings were being misused and in those circumstances, it was held that the court was required to consider each petition on its merit. What was stated in paragraph 3, 4 and 5 are reproduced hereunder: "3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency taken by this Court. On an average at least 10 to 15 transfer petitions are on Board of each Court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. 4. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grand parents available to look after the child. The Respondent is willing to pay all expenses for travel and stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at Delhi. Thus, the ground that the Petitioner has no source of income is adequately met. 5. The Respondent is willing to pay all expenses for travel and stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at Delhi. Thus, the ground that the Petitioner has no source of income is adequately met. 5. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out." The petition, seeking transfer of proceedings in the aforementioned case, was dismissed by the Supreme Court. 14. If leniency has not to be shown only because a petitioner seeking transfer of proceedings was a woman then the only test for deciding such petitions is to adopt the 'degree of difficulty test'. The 'degree of difficulty test' 15. It appears that whereas, the petitioner is permanently residing in Jammu, the husband-respondent resides at Srinagar. It also appears that the respondent has been attached in the Police Control Room, Jammu w.e.f., March, 2015 but otherwise permanently borne on the cadre in the Kashmir zone. According to the stand taken by the respondent, the attachment has been ordered on the basis of a complaint filed against him by the petitioner, yet the same is said to be temporary and that he is likely to be shifted back to the Kashmir Zone. If that be so, then to that extent, there would be no justification to order transfer of proceedings, yet what cannot be lost sight of is the fact that the respondent is already facing a criminal trial under Section 498-A/109 RPC in the court at Jammu along with the proceedings filed under Section 488 of the Criminal Procedure Code for maintenance. The proceedings under Section 13 of the Hindu Marriage Act came to be filed subsequently in the court at Srinagar. 16. Dragging the petitioner to Srinagar in a suit for divorce and correspondingly dragging the respondent-husband to defend the criminal trial initiated by her behest to Jammu would lead to parties running at both the places to pursue the cases initiated at their behest respectively. 17. 16. Dragging the petitioner to Srinagar in a suit for divorce and correspondingly dragging the respondent-husband to defend the criminal trial initiated by her behest to Jammu would lead to parties running at both the places to pursue the cases initiated at their behest respectively. 17. Besides this, it has come on record that the petitioner's father is suffering from Cancer and that he is old and financially not sound. Even when the proceedings initiated at the behest of the respondents at Srinagar are civil in nature, where the presence of the petitioner may not be necessary all the time, yet a case can never be expected to be followed effectively and properly by parties sitting at a distance. Close contact with the counsel and presence of the petitioner on many occasions becomes necessary with a view to effectively defend such proceedings. 18. Nothing has been brought on record by the respondent to suggest that the petitioner could easily stay with a relative or be accompanied by one as and when required to attend the court hearing at Srinagar. If that be so, the petitioner would be forced to stay in a hotel all alone and to expect that from a lady with ordinary means would be indeed difficult. 19. Besides this, expenses of boarding, lodging, travel etc. would be difficult to be borne by the petitioner, who cannot be expected to maintain herself in a meager amount of Rs. 2500/- ordered by the court in the proceedings under Section 488 Cr.P.C. 20. Thus, on a comparative assessment of the degree of difficulty, I have no hesitation in holding that the scabs weigh in favour of the petitioner as against that of the respondent-husband. Moreover, since the respondent is already defending himself in the trial as also the proceedings under Section 488 Cr.P.C., it would not be difficult for him to follow the suit filed by him in the courts at Jammu. Therefore, in my opinion, whereas it would be slightly inconvenient for the respondent to follow' his cases at Jammu, yet looking to the degree of difficulty of the petitioner, the same deserves precedence over inconvenience. 21. For the aforementioned reasons, the present petition is allowed. Therefore, in my opinion, whereas it would be slightly inconvenient for the respondent to follow' his cases at Jammu, yet looking to the degree of difficulty of the petitioner, the same deserves precedence over inconvenience. 21. For the aforementioned reasons, the present petition is allowed. The proceedings pending before the court of 1st Additional District Judge, Srinagar in case titled Sharan Pal Singh v. Jatinder Kour are ordered to be transferred to the court of Learned Additional District Judge (Matrimonial Cases), Jammu. The requisite record shall be remitted to the court at Jammu. Parties to cause their appearance on 12.12.2015. Disposed of accordingly.