IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Transfer Application No. 04 of 2008 Smt. Poonam Bisht, W/O Dr. Meharban Singh Bisht, D/O Sri Rajendra Singh Bhandari, presently residing at Sainik School Ghorakhal, Tehsil and District Nainital. …… Applicant. Versus Principal Judge, Family Court, Udham Singh Nagar and another. … Respondents. Sri Ajay Veer Pundir, learned counsel for the applicant. Sri Prabhakar Joshi, learned counsel for the respondent No.2. Date August 06, 2008. Hon’ble B.S.Verma, J. (Stay Vacation Application 3415 of 2008) Heard Sri Ajay Veer Pundir, learned counsel for the applicant and Sri Prabhakar Joshi, learned counsel for the respondent No.2. This transfer application has been moved under Section 24 of the Code of Civil Procedure for transfer of matrimonial Case No. 227 of 2007, Dr. Meharban Singh Bisht Vs. Smt. Punam Bisht, under Section 13 of the Hindu Marriage Act, pending in the Court of Principal Judge, Family Court, Udham Singh Nagar to the Court of Principal Judge, Family Court, Nainital. According to the applicant, the marriage between the applicant and respondent no.2 was solemnized on 28th May 2002 at Ranikhet, district Almora and out of their wedlock a daughter was born on 21-1-2004. The applicant is serving as a teacher at Sainik School Ghorakhal, district Nainital and has been maintaining herself and the daugher. The respondent no. 2 filed a case for dissolution of marriage by a decree of divorce which has been registered as Case No. 227 of 2007 Dr. Meharban Singh Bisht Vs. Smt. Poonam Bisht before Principal Judge, Family Court, Udham 2 Singh Nagar and a copy of the petition has been annexed as Annexure No. 1 to the application. The respondent no. 2 is a P.C.S. Officer and is presently posted at Kichha Sugar Company and he is an influential Officer at Udham Singh Nagar. Hence this transfer application has been filed. The application has been contested by the respondent no.2, who has filed counter affidavit. It has been stated in paragraph no. 5 of the counter affidavit that the applicant tried to separate the respondent no. 2 from his joint family. The respondent no. 2 made every effort to pacify the applicant, but to no avail. The applicant is alleged to be responsible to spoil the matrimonial life of the respondent no.2-husband. It has also been stated that on 5-2- 2004 the applicant left her in-laws house out of her own free will along with the baby. The respondent-husband paid several visits to the applicant to reconcile the matter but the applicant did not agree to live in the joint family. The applicant herself is trying to harass the respondent no. 2 and she is adopting dilatory tactics to prolong the litigation between the parties. The allegation that the petition under Section 13 of the Hindu marriage Act has been filed in the garb of power and influence is stated to be false and has been denied. Learned counsel for the applicant has vehemently urged that the applicant is a lady and she has been residing at Ghorakhal, where is she is serving as a teacher in the Sainik School and she has a minor daughter aged 4 years to maintain. There is no other adult member with her. Learned counsel has submitted that it would be difficult for the lady to go to Udham Singh Nagar to defend the case. In support of his contention, learned counsel for the applicant has relied upon the case of Paushi (SMT) Vs. Akash Katoch [(2005) 11 Supreme Court Cases 556]. In that 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. 3 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 Udham Singh Nagar. 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.” 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 a school teacher in Ghorakhal (Nainital) far away from his parents house at Ranikhet. The case law cited by the respondent no.2 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 4 the court to make such order. The ratio of the judgment cannot be disputed, but the facts of the present case are distinct. Learned counsel for the applicant has pointed out that the respondent-husband is a P.C.S. Officer and he has been posted in the district (Udham Singh Nagar) where his house is situate, i.e. village Gangapur, Tahsil Bazpur, District Udham Singh Nagar, therefore, to meet the ends of justice, the case deserves to be transferred from Udham Singh Nagar to district Nainital. This contention of the learned counsel for the applicant has some force. In the divorce petition itself (copy Annexure No.1 to the application), the respondent no. 2 has given his address of Kichha Sugar Company Kichha ( Udham Singh Nagar) and in para no. 6 of the petition, the home address of the respondent no.2 has been disclosed. In the above facts and circumstances, on merits as well as to meet the ends of justice, it is a fit case for transfer of matrimonial Case No. 227 of 2007 between the parties from district Udham Singh Nagar to district Nainital. The transfer application is allowed. The Matrimonial Case No. 227 of 2007, Dr. Meharban Singh Bisht Vs. Smt. Punam Bisht, under Section 13 of the Hindu Marriage Act, pending in the Court of Principal Judge, Family Court, Udham Singh Nagar is transferred to the Court of Principal Judge, Family Court, Nainital for disposal in accordance with law. The Principal Judge, Family Court, Nainital, 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 5 6 7