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2016 DIGILAW 1407 (HP)

Urvashi Rana v. Himanshu Nayyar

2016-07-15

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. (Oral) This petition under Section 24 of the Code of Civil Procedure has been filed by the petitioner for transfer of petition No. 12/3 of 2005 titled as Himanshu Nayyar v. Urvashi pending before the Court of learned Civil Judge, (Senior Division), Nalagarh (exercising the power of District Judge under the Hindu Marriage Act, 1955), under Section 9 of the Hindu Marriage Act, 1955 (for short the 'Act') to the Court of learned District Judge, Chamba, at Chamba, H.P. 2. The petitioner is a resident of Chamba and was married to respondent on 29.11.2012. But, on account of differences, the parties are not only living separately, but are also involved in several litigations. 3. Petitioner has sought transfer of proceedings on the grounds of inconvenience, insufficiency of means, compulsive litigation and on the ground that the distance between Nalagarh, District Solan and Chamba is more than 350 KMs and it is difficult for her to attend the Court at Nalagarh, District Solan. 4. The respondent has filed reply opposing the claim of the petitioner and 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. Mr. Rakesh Kumar Thakur, learned counsel for the petitioner, has strenuously argued that in matrimonial proceedings and other like proceedings which are the outcome of matrimonial discord, it is the convenience of the wife which has to be looked at. In support of his contentions, strong reliance has been placed upon the judgments of the Hon'ble Supreme Court in Sumita Singh v. Kumar Sanjay and another (2001) 10 SCC 41, Soma Choudhury v. Gourab Choudhaury (2004) 13 SCC 462 , Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi (2005) 12 SCC 237 , Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and others (2008) 3 SCC 659 , Arti Rani alias Pinki Devi and another v. Dharmendra Kumar Gupta (2008) 9 SCC 353 and Anjali Ashok Sadhwani v. Ashok Kishinchand Sadhwani AIR 2009 SC 1374 . 6. 6. In Sumita Singh v. 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 v. 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 v. 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 application for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and others (2008) 3 SCC 659 , the Hon'ble Supreme Court after analysing 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. In Arti Rani alias Pinki Devi and another v. 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 v. 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 at her parental house at Chamba and, therefore, it is the convenience of the petitioner which is required to be considered over and above the inconvenience of the husband. 13. In view of the aforesaid discussion, the present petition is allowed and the petition No. 12/3 of 2005 titled as Himanshu Nayyar v. Urvashi pending before the Court of learned Civil Judge, (Senior Division), Nalagarh (exercising the power of District Judge under the Hindu Marriage Act, 1955), is ordered to be transferred to the Court of learned District Judge, Chamba, at Chamba, Himachal Pradesh The parties through their counsel(s) are directed to appear before the learned District Judge, Chamba, on 08.08.2016. 14. 14. However, learned counsel for the respondent at this stage states that the distance between Nalagarh and Chamba is about 350 KMs and it would be difficult for the respondent to attend the proceedings at Chamba in case different dates are fixed by the two learned Presiding Officers in these proceedings. 15. There appears to be substance in these submissions, because after all, the litigation cannot be made cumbersome on the respondent only because he happens to be the husband, therefore, it is made clear that learned Chief Judicial Magistrate, Chamba shall fix the proceedings in the case under Domestic Violence Act on the same date as are fixed by the learned District Judge, Chamba in the proceedings under Hindu Marriage Act. The petition stands disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own costs. Interim order granted by this Court on 12.5.2016, is vacated.