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2018 DIGILAW 2214 (HP)

Nisha Sharma v. Deep Chand Sharma

2018-12-14

VIVEK SINGH THAKUR

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JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present petitioner is wife of the respondent. The respondent-husband has filed a petition under Section 9 of the Hindu Marriage Act, before learned Senior Civil Judge, Bilaspur, H.P. 2. Present petition has been filed by the petitioner-wife seeking transfer of the petition, filed by her husband, from Bilaspur to Solan, on the ground that presently petitioner-wife is living at Solan alongwith her child about 12 years old, who is studying in 8th standard in DAV Public School, Solan and therefore, it is difficult for her to defend herself by visiting Bilaspur after managing affairs of her child, who is not able to manage the day-to-day affairs himself and further that two other cases instituted by the petitioner-wife prior to filing of the petition by the respondent-husband, are also pending in the Courts at Solan. 3. It is the case of the petitioner-wife that petition preferred by the respondent-husband is a counter-blast to the petitions filed by her under Section 125 Cr.P.C. and under the provisions of the Protection of Women from Domestic Violence Act, 2005. Copies of the petition filed by the respondent-husband as well as instituted by the petitioner-wife, have also been placed on record as Annexures P-1 to P-3. 4. Petition has been vehemently opposed on behalf of the respondent-husband, by filing a detailed reply, wherein it is stated that the respondent-husband has already spent Rs.7-8 lacs for settling the business of the petitioner-wife at Bilaspur, but the moment he lost his job of Ambulance driver at Bilaspur and left for Delhi and was managing his livelihood somehow by doing private jobs, petitioner-wife had left his company alongwith her child and had also shifted all furniture, equipments, cosmetics and other concurrent articles, bought by him, for establishing her business of beauty parlour, to Solan and that the petition filed at Bilaspur is a result of the act, conduct and behaviour of the petitioner-wife and further that the respondent-husband is not in a position to defend the case at Solan, as he has no means to manage even bus fare or attend the Court at Solan. 5. Learned counsel for the petitioner-wife has relied upon the judgment passed by a Coordinate Bench of this Court in Mrs. 5. Learned counsel for the petitioner-wife has relied upon the judgment passed by a Coordinate Bench of this Court in Mrs. Rachna vs. Prashant Sharma, Latest HLJ 2017 (HP) 865; and by the Apex Court in Arti Rani alias Pinki Devi and another vs. Dharmendra Kumar Gupta, (2008) 9 SCC 353 . 6. In Arti Rani’s case (supra), the Apex Court had allowed the transfer of proceedings on the ground that for the wife being a woman having minor child, it would be difficult to attend the Court in the State of Jharkhand at a considerable distance from Patna, where she was residing alongwith her child. On facts, this judgment may not be strictly applicable in the present case as it is not a case where wife has to go outside the State to attend the Court. 7. Relying upon the Apex Court judgments in Anindita Das vs. Srijit Das, (2006) 9 SCC 197 ; Krishna Veni Nagam vs. Harish Nagam, (2017) 4 SCC 150 ; and Santhini vs. Vijaya Venketesh, (2018) 1 SCC 1 , learned counsel for the respondent-husband contended that instead of transferring the present petition to Solan, a direction be issued for conducting trial of the petition by the husband through videoconferencing, as now a days, at every District Headquarter, facility of videoconferencing is available. 8. Before adverting to the transfer petition onward, it would be appropriate to deal with the judgments referred to by the learned counsel for the respondent-husband. 9. In Anindita Das’s case (supra), the Apex Court had dismissed the transfer petition filed by the wife with a direction to the husband to pay all travel and stay expenses to the wife and her companion for each and every occasion when she was required to attend the Court at Delhi. This judgment is of no help to the respondent-husband, as it is his stand that he is not having any source of income to maintain himself much less to pay all travel and stay expenses to the petitioner-wife alongwith her companion. 10. In Krishna Veni Nagam’s case (supra), it was suggested by the Division Bench of the Apex Court considering the fact that it is not only wife, but the husband may have to face problems on transfer of the proceedings from one Court to another. 10. In Krishna Veni Nagam’s case (supra), it was suggested by the Division Bench of the Apex Court considering the fact that it is not only wife, but the husband may have to face problems on transfer of the proceedings from one Court to another. The Apex Court had suggested to conduct the trial in matrimonial cases through videoconferencing as it is now available in every District of the country and it was observed that in any case, wherever such facilities are available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. The observation made by the Apex Court, in this judgment, was directory in nature. Even otherwise, this judgment has been considered by the Constitution Bench of the Apex Court in Santhini’ case (supra), wherein by majority judgment in paragraph-58.4, it has been concluded that in a transfer petition, videoconferencing cannot be directed. Also, in paragraph-56 of this judgment, it has been observed that discretion to be rest with the Family Court to be exercised after the Court arrives at a definite conclusion that the settlement is not possible and both the parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing. Therefore, plea of the respondent-husband, seeking direction to conduct trial through videoconferencing, is not sustainable. 11. In the present petition, it is undisputed that petitioner-wife, at present, is residing at Solan. In a petition, filed by the respondent-husband at Bilaspur, place of residence of petitioner-wife, before marriage as well as after marriage, has been stated as Resident of Village Kalin, House No.177, Ward No.13, Post Office Saproon, Tehsil and District Solan, H.P. The fact that child, about 12 years of age, is studying in 8th standard in DAV Public School, Solan, is residing with the petitioner-wife, is also not in dispute. 12. Perusal of the petition filed by the petitioner-wife under Section 125 Cr.P.C. (Annexure P-2) and an application filed under the provisions of the Protection of Women from Domestic Violence Act, 2005, reveals that these proceedings were initiated by the petitioner-wife on 06.04.2018 at Solan. Whereas, petition under Section 9 of the Hindu Marriage Act (Annexure P-1) filed by the respondent-husband does not bear any date therein. Whereas, petition under Section 9 of the Hindu Marriage Act (Annexure P-1) filed by the respondent-husband does not bear any date therein. However, in paragraph-13 of the said petition, it is mentioned that cause of action arose to the petitioner on 29.04.2018. Meaning thereby, the said petition has been filed after 29.04.2018 i.e. after institution of the petitions by the petitioner-wife at Solan. 13. It is the case of the petitioner-wife that respondent-husband, after service in the petition and the application filed by her, is duly represented by an Advocate at Solan and the same are pending for reply to be filed on behalf of the respondent-husband. 14. In Rachna’s case (supra), after considering the pronouncement of the Apex Court, it has been observed by a Coordinate Bench of this Court that where there is videoconferencing facility is available, Court will have to readily resort to the same and no party would then have any right to insist upon transfer of the case only on account of the party being a lady or merely on the ground of inconvenience. However, considering that proceedings under Section 13 of the Hindu Marriage Act, were already pending at Mandi and the respondent-husband had to go to Mandi to attend those proceedings, it was held that no prejudice would be caused to the husband in case proceedings are transferred to Mandi from Shimla. 15. In the present case also, like Rachna’s case (supra), proceedings in two cases are pending at Solan being defended by the husband. Therefore, it would be in the interest of justice and also for the benefit of both the parties to transfer the present petition from Bilaspur to Solan as the husband will also be able to manage the proceedings initiated against and by him through one and the same Advocate, so as to avoid the conflict of pleadings/defence taken by the respondent-husband. 16. In view of the aforesaid discussion, petition is allowed and petition bearing case No.HMA-06/3 of 2018, titled as Deep Chand Sharma vs. Nisha Sharma, pending before learned Senior Civil Judge, Bilaspur, H.P., is directed to be transferred to District Judge, solan, H.P., who shall deal with the same, in accordance with law. 16. In view of the aforesaid discussion, petition is allowed and petition bearing case No.HMA-06/3 of 2018, titled as Deep Chand Sharma vs. Nisha Sharma, pending before learned Senior Civil Judge, Bilaspur, H.P., is directed to be transferred to District Judge, solan, H.P., who shall deal with the same, in accordance with law. Registry is directed to inform the concerned Senior Civil Judge, Bilaspur, to transfer the petition on or before 10.01.2019 and parties are directed to appear before learned District Judge, Solan, H.P., on 18.01.2019, who shall deal with the case either himself or by assigning the same, in accordance with the roster. Accordingly, petition stands disposed of, so also pending application(s), if any.