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2018 DIGILAW 588 (HP)

Dharmi Devi v. Manohar Lal

2018-04-09

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —This petition under Article 227 of the Constitution of India and under Section 24 of the Code of Civil Procedure has been preferred on behalf of the petitioner-wife seeking transfer of the petition i.e. H.M.A. No. 31/17/16 titled as ''Manohar Lal versus Dharmi Devi'' from the Court of learned Additional District Judge (II) , Mandi to the Court of learned District Judge, Kullu, H.P. 2. Undisputed facts of the case are that the marriage between the parties was solemnized on 28/29.01.2015 in accordance with the Hindu Rites and Customs. After the marriage, petitioner and respondent lived as husband and wife for some time, but thereafter their relations became sour to the extent that now both of them are engaged in litigation. The petitioner has filed a case under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which is pending in the Court of learned Chief Judicial Magistrate, Kullu, whereas, the respondent has initiated proceedings for divorce which are pending in the Court of learned Additional District Judge (II) , Mandi and the same now sought to be transferred by the petitioner to the Court of learned District Judge, Kullu, on the ground that the petitioner has very limited source of income and presently she is residing with her parents at Kullu. Thus, she is not in a position to attend the Court at Mandi. I have heard learned counsel for the parties and perused the records. 3. 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. 4. 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. 5. 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. 5. 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. 6. 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 wh ich 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." 7. 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." 7. 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. 8. Similarly, in Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani , (2009) AIR(Supreme Court) 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. 9. 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 Kullu, it is her convenience that is required to be considered over and above the inconvenience of the husband, who is stated to be working as plumber. 10. Accordingly, the present petition is allowed. The proceedings in H.M.A. No.31/17/16 titled as ''Manohar Lal versus Dharmi Devi'' pending adjudication before learned Additional District Judge (II) , Mandi are transferred to the Court of learned District Judge, Kullu, H.P. 11. The parties, through their counsel(s) , shall appear before the Court of learned District Judge, Kullu, H.P. on 1 st May, 2018. 12. The petition stands disposed of in the aforesaid terms, so also the pending applications, if any.