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Himachal Pradesh High Court · body

2025 DIGILAW 714 (HP)

Ramavati v. Mukesh Kumar

2025-04-09

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. The instant petition has been filed under Section 24 of the Code of Civil Procedure by petitioner/wife for transfer of following cases filed by respondent/husband from the files of learned Principal Judge Family Court Kinnaur at Rampur Bushahar to the files of learned Principal Judge Family Court Shimla:- i) Case No.3 of 2024, titled as Mukesh Kumar vs. Ramavati under Section 25 of Guardian and Wards Act; ii) HMA No. 119 of 2024 titled as Mukesh Kumar vs. Ramavati under Section 13 of Hindu Marriage Act. 2. Petitioner is praying for transfer of both the above cases on the ground that the petitioner is presently posted at Sunni in District Shimla. The minor son of the petitioner is residing with her and is presently a student of 9th standard. The distance from Sunni to Rampur Bushahar is approximately 90 Kms., whereas the distance between Sunni and Shimla is about 45 Kms. and for such reason, it will be more convenient for the petitioner to contest the petitions filed by the respondent at Shimla. 3. The prayer of the petitioner has been contested by the respondent by alleging that the petitioner is serving in Police department and as such cannot complain of financial constraints. As regards the comparison of distance between Sunni and Rampur Bushahar vis-à-vis Sunni and Shimla, the same is not of much significance for the reason that the petitioner in any case has to travel from Sunni to the other place. It has also been submitted that the son of the parties is about 16 years old and cannot be said to be dependent on the petitioner for all intents and purposes. 4. I have heard learned counsel for the parties and have also gone through record carefully. 5. The matter was heard on 26.3.2025 and was reserved for orders, however, at the time of going through the relevant material it transpired that the jurisdiction under Guardians and Wards Act, 1890 is vested in the Court within whose ordinary local jurisdiction the ward ordinarily resides. The parties, thereafter were afforded opportunity to address on the issue as one of the matters that was sought to be transferred was a petition filed under Section 25 of the Guardians and Wards Act, 1890. The parties, thereafter were afforded opportunity to address on the issue as one of the matters that was sought to be transferred was a petition filed under Section 25 of the Guardians and Wards Act, 1890. On 7.4.2025, the Court was informed by learned counsel for respondent/husband that the petition under Guardians and Wards Act, 1890 filed by the respondent has been withdrawn. 6. In view of above development now the prayer made in the instant petition is to be considered qua one petition filed under section 13 of the HMA by the respondent. 7. Learned Counsel for petitioner has placed reliance on judgments passed in (2022) 15 SCC 400 Akkireddy Niharika Vs Akkireddy Kartik Kumar; (2022) 15 SCC 632 Bagdi Bai Vs Laxman; (2021) 14 SCC 44 Neetu Yadav Vs Sachin Yadav and (2021) 15 SCC 257 Rashmi Rohan Shetty Vs Rohan Raghunath Shetty. Having considered the judgments so relied upon, I have not found and specific reiteration of law save and except that all such judgments have been passed in their own peculiar facts. 8. Reliance has also been placed on behalf of petitioner on the judgment dated 23.12.2021 passed by a co-ordinate bench of this Court in CMPMO 296 of 2021 titled Kusum Sharma Vs Vikas Sharma. In para 4 of the Judgment, it was observed as under: ‘4. Having heard learned Counsel representing the petitioner and perused the material available on record, this court has no hesitation to hold that in matrimonial proceedings and other like proceedings, which are the outcome of matrimonial discord, it is the convenience of wife, which is taken into consideration by the court while considering the prayer, if any, made for transfer of the case.’ 9. At this stage it will be relevant to reproduce the following extract from Kulwinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659 “25. Similarly in Subramaniam Swamy (Dr.)v. Ramakrishna Hegde [ (1990) 1 SCC 4 ] dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. (as His Lordship then was) stated:(SCC p. 9, para 8) “8. Similarly in Subramaniam Swamy (Dr.)v. Ramakrishna Hegde [ (1990) 1 SCC 4 ] dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. (as His Lordship then was) stated:(SCC p. 9, para 8) “8. Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided that the State Government of the State in which the other High Court had its principal seat consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court and is of wider amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other civil court in one State to a High Court or other civil court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. Parliament has, therefore, invested this Court with the discretion to transfer the case from one court to another if that is considered expedient to meet the ends of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. Parliament has, therefore, invested this Court with the discretion to transfer the case from one court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude—for the ends of justice—have been advisedly used to leave the matter to the discretion of the Apex Court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone.” (emphasis supplied) 10. Thus, besides the convenience of the wife being one of the important parameters, another cardinal and relevant aspect is the demand of ends of justice. The balance of expediency may weigh differently in different fact situation. 11. In the instant case, the petitioner is employed in Police Department and is presently posted at Sunni in District Shimla. The Family Court, Shimla is located at Shimla, which is at a distance of approximately 45 Kms. from Sunni. Notwithstanding that the respondent has filed the petitions against the petitioner in the Court of Principal Judge, Family Court, Kinnaur at Rampur Bushahar the said place still is part of Shimla District. As per own saying of the petitioner, the distance between Sunni and Rampur Bushahar is 90 Kms. Thus, it cannot be the ground to transfer the petitions to Shimla as in any case, the petitioner has to travel, if she wants to personally attend the hearings of the cases. 12. Petitioner, being a serving Government official, also is not likely to have any financial constraints in defending the cases at Rampur Bushahar, which in both events shall almost to the same extent. 13. The son of the petitioner is also aged approximately 16 years and for such reason, it cannot be said that he has necessarily to accompany of his mother, whenever she travels for defending the cases. 13. The son of the petitioner is also aged approximately 16 years and for such reason, it cannot be said that he has necessarily to accompany of his mother, whenever she travels for defending the cases. Even otherwise, the petitioner must be regularly attending her office during working hours without her son accompanying her. 14. Viewed from another angel, the petitioner is not required to be present in the Court on each and every date of hearing. Even, if she so desires, she can make her appearance through virtual mode i.e. through Video Conferencing. 15. From the above analysis it cannot be concluded that the petitioner/wife will be put to some real hardship in case the petition filed by the husband is tried in the Family Court at Rampur Bushahar. 16. The petitioner is Government official and she can be posted at any other place also. In such event again the circumstances may change either to her benefit or prejudice. In that event the petitioner, if finds herself in difficulty or hardship, she may consider to seek transfer of petition in accordance with law and if that be the case this order will not come in the way of the petitioner and her grievance, if any, will be heard and decided on its own merits. 17. In result, I find no merit in the petition and the same is accordingly dismissed. However, the Court of Learned Principal Judge, Family Court Rampur Bushahar will provide access to the petitioner through video conferencing for the hearings of the above matter in case the petitioner so applies. 18. The petition is disposed of. Pending applications, if any, also stand disposed of.