Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Transfer Application No. 02 of 2008 Smt. Nirmala Uniyal W/O Sri Ram Krishan Uniyal, D/O Late Major A.P.Dhyani, R/O Gurudwara Colony, Turner Road, Dehradun. …… Applicant. Versus Sri Ram Krishan Uniyal, S/O Late Sri Balak Ram Uniyal, R/O Uttarkashi proper, District Uttarkashi, at present posted at Chinyali Sour, Government Inter College as Principal, District Uttarkashi. … Opposite Party. Sri Rajendra Dobhal, learned counsel for the applicant. Sri Sharad Sharma, learned counsel for the Opposite Party. Date August 22, 2008. Hon’ble B.S.Verma, J. This transfer application has been moved under Section 24 of the Code of Civil Procedure for transfer of Matrimonial Case/Original Suit No. 28 of 2007, Sri Ram Krishna Uniyal Vs. Smt. Nirmala Uniyal, under Section 13 of the Hindu Marriage Act (for short the Act), pending in the Court of the District Judge, Tehri Garhwal ,New Tehri to Dehradun court. According to the applicant-wife, the marriage between the parties was solemnized according to Hindu rites and customs on 27-11-2002 at Dehradun and both the parties lived together for some time but thereafter, the opposite party-husband started ill- treating the applicant and left the applicant at Dehradun without any reasonable cause. On 28-5-2005 the O.P.-husband with some mala fide intention sent a notice to the applicant calling upon the applicant to join the company of the opposite party, which was replied to on 7-6-2005 stating therein that the applicant is still willing and ready to live together with the opposite party and requested the O.P.-husband to come to Dehradun on 23-6-2005 and take the applicant with him, but the opposite party did not turn up 2 and sent a reply making false averments. The applicant went to the opposite party’s house at New Tehri along with her uncle, but the opposite party refused to take her in his house. The applicant then came back to Dehradun and filed an application dated 16-7-2007 under Section 9 of the Act for restitution of conjugal rights between the parties, which was registered as Suit No. 284 of 2007 Mrs. Nirmala Uniyal Vs. Mr. Ram Krishna Uniyal in the court of Principal Judge, Family Court, Dehradun. The applicant had filed a Criminal Case No. 24 of 2007 under Section 125 of the Code of Criminal Procedure for grant of maintenance from the opposite party. The opposite party has filed his objection in that case and the proceedings in both the cases are going on at Dehradun. According to the applicant, the opposite party just to harass the applicant filed Original Suit No. 28 of 2007 under Section 13 of the Act for dissolution of their marriage by a decree of divorce in the Court of the District Judge, Tehri Garhwal, New Tehri. The applicant could not appear in the case at Tehri on account of death of her father on 15-9-2007. Since one brother of the applicant had also expired on 6-2-2005, there is no body to accompany the applicant to go to New Tehri to defend her case and therefore, there is difficulty for the applicant to contests the case at New Tehri. To substantiate the averments made in the application, the applicant has filed her own affidavit. The opposite party has filed counter affidavit and has denied the allegations made in the application except that the marriage between the solemnized according to Hindu rites. It has been stated that the attitude of the applicant has been harassing towards respondent. The proceedings under Section 9 of the Act and under Section 125 of the Code of Criminal Procedure are subsequent to the institution of case under Section 13 of the Act the respondent. It has also been stated that the applicant had filed an application under Section 9 of the Act, which was registered as O.S. No. 30 of 2006 on 20-1-2006 and the same was dismissed 3 because the applicant declined to accompany the respondent no. 2 vide order dated 14-5-2007. Learned counsel for the applicant has vehemently urged that the applicant is a lady and she has been residing at Dehradun. Her father had died and her brother had predeceased her father. There is no body to accompany her to go to New Tehri to defend her case. In support of his contention, learned counsel for the applicant has relied upon the case of Archana Singh Vs. Alok Pratap Singh [(2000) 3 SCC, 744] and the case of Paushi (SMT) Vs. Akash Katoch [(2005) 11 Supreme Court Cases 556]. In the former case, the Apex Court while allowing the transfer application has observed that offer to pay the travelling expenses to the petitioner wife is not a substitute for the difficulties which she will have to undertake for contesting the case at Thane all the way from Patna. In the latter case, the transfer petition was allowed by the Apex Court and it was observed that it would be difficult for the lady to go to Gurdaspur to defend the case. On the other hand, learned counsel for the respondent no.2 has contended that no good ground for transfer of case has been shown by the applicant. He has submitted that transfer application cannot be allowed merely on the ground that the applicant has difficulty to attend court at New Tehi, Tehri Garhwal. Learned counsel has relied upon the case of Anindita Das Vs. Srijit Das [(2006) 9 Supreme Court Cases, 197], wherein the Apex Court while dismissing the transfer petition has observed in paragraph no. 5 as under:- “5. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out.” 4 The ratio of the judgment cannot be disputed. In that case, the lady was living with her parents and the grandparents of the child were available to look after the child and the respondent- husband was willing to pay all expenses for travel and stay of the petitioner, while in the case at hand, the applicant-wife is residing at her parents house in Dehradun and the marriage between the parties was solemnized at Dehradun on 27-11-2002. The case law cited by the respondent is of no help to him. However, the present application for transfer shall be considered on its merit. Learned counsel for the respondent-husband has also relied upon the case of Kulwinder Kaur alias Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others [(2008) 3 SCC 659] wherein it has been observed by the Apex Court that if on the 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. The ratio of the judgment cannot be disputed, but the facts of the present case are distinct. It is not disputed that the marriage between the parties was solemnized at Dehradun on 27-11-2002. The applicant wife is residing in Dehradun. It is pertinent to mention that in para no. 10 of the transfer application, it has been mentioned that the father of the applicant had expired on 15-9-2007 and one brother of the applicant also passed away on 6-2-2005 and there is nobody in the house of the applicant to accompany her to New Tehri. This averment made in the application has not been specifically denied and nowhere it was stated that the father and one brother of the applicant are still alive. It has also not been denied that the applicant is residing at her parents’ house in Dehradun. Nowhere it has been stated in the counter affidavit that the address of Dehradun has been given by the applicant for the purposes of the present case. However, according to the husband respondent, the applicant had accepted the job of assistant teacher at Mussoorie International 5 School Mussoorie in the year 2003 and, in the divorce petition, the address of the applicant has been given of Mussoorie International School, Mussoorie. In the above facts and circumstances, considering the fact that the marriage between the parties was solemnized at Dehradun, where the applicant has been residing at present coupled with the fact that there is nobody to accompany her to New Tehri to defend the divorce petition as well as in order to meet the ends of justice, it is a fit case for transfer of matrimonial Case/O.S. No. 28 of 2007 Sri Ram Krishna Uniyal Vs. Smt. Nirmala Uniyal, under Section 13 of the Hindu Marriage Act from Tehri Garhwal to Dehradun Court. The transfer application is allowed. The Matrimonial Case/O.S. No. 28 of 2007 Sri Ram Krishna Uniyal Vs. Smt. Nirmala Uniyal, under Section 13 of the Hindu Marriage Act, pending in the Court of the District Judge, Tehri Garhwal, New Tehri is transferred to the Court of Principal Judge, Family Court, Dehradun for disposal in accordance with law. The Principal Judge, Family Court, Dehradun, shall decide the case expeditiously preferably within a period of six months from the date of production of certified copy of this order. Both the parties shall co- operative with the trial court in the speedy disposal of the case. ( B.S.Verma, J. ) RCP 6 7