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2018 DIGILAW 2265 (HP)

Pooja Sharma v. Sarvesh Sharma

2018-12-19

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - By way of instant petition filed under Section 24 of the Code of Civil Procedure, prayer has been made on behalf of the petitioner for transfer of case No.139-HMA/3 of 2017, titled as Sarvesh Sharma versus Pooja Sharma, pending in the Court of learned District Judge, Sirmour, District Nahan, H.P. to the Court of learned District Judge, Una, District Una, H.P. 2. The marriage between the petitioner and the respondent was solemnized on 16.4.2012 at village Bharolia Khurd, Tehsil & District Una, Himachal Pradesh, but fact remains that they were unable to live together on account of certain differences and as such, petitioner left her matrimonial house and started living at her parental house at village Bharolia Khurd, Tehsil and District Una, H.P. 3. As per the averments contained in the petition, respondent filed petition under Section 13 of the Hindu Marriage Act ( for shot the ''Act'') in the Court of learned District Judge, Sirmour, District Nahan, H.P., seeking therein dissolution of marriage. After having received summons/ notices (Annexure P-1) issued by learned District Judge, Sirmour in the aforesaid petition having been filed by the respondent (husband), petitioner has approached this Court in the instant proceedings, praying therein to transfer the proceedings from the Court of learned District Judge, Sirmour to the Court of learned District Judge, Una, District Una, H.P., on the grounds of inconvenience, insufficiency of means, compulsive litigation and on the ground that the distance between Sirmaur and Una is more than 200 KMs and it is difficult for her to attend the Court at Sirmour, District Nahan, H.P. 4. Having heard learned counsel representing the parties and perused the material available on record, this Court has no hesitation to conclude that matrimonial proceedings and other like proceedings, which are the outcome of matrimonial discord, it is the convenience of the wife which is required to be taken into consideration by the Court while considering the prayer, if any, made for transfer of the case. 5. In Sumita Singh versus 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. 6. 5. In Sumita Singh versus 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. 6. In Soma Choudhury versus 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. 7. In Rajani Kishor Pardeshi versus 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. 8. Similarly, while dealing with the application for transfer of proceedings in Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others , (2008) 3 SCC 659 , the Hon''ble Supreme Court after analyzing 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." 9. In Arti Rani alias Pinki Devi and another versus 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. 10. Similarly, in Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani , (2009) AIR 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. 11. It is quite apparent from the aforesaid exposition of law that in dispute of the present kind where the petitioner is compelled to reside at her parent house at Bharolia Khurd, Tehsil & District Una, H.P., on account of matrimonial dispute, it is convenience of the petitioner, which is required to be considered over and above the inconvenience of the husband. 12. In view of the aforesaid discussion, the present petition is allowed and the case No.139-HMA/3 of 2017 titled as Sarvesh Sharma versus Pooja Sharma, pending in the Court of learned District Judge, Sirmour, District Nahan, H.P. is ordered to be transferred to the Court of learned District Judge, Una, District Una, H.P. Record, if any, be sent forthwith. The parties through their respective counsel(s) are directed to appear before the learned District Judge, Una District Una, H.P. on 11.01.2019. The petition stands disposed of in the aforesaid terms, so also pending application(s), if any. The parties through their respective counsel(s) are directed to appear before the learned District Judge, Una District Una, H.P. on 11.01.2019. The petition stands disposed of in the aforesaid terms, so also pending application(s), if any. Interim order granted by this Court on 5.9.2018, is vacated.