T.A. No. 111 of 2010 [ 1] In the High Court of Punjab & Haryana at Chandigarh Transfer Application No. 111 of 2010 (O&M) Date of decision : 22.9.2010 Madhu Bala ... Applicant v. Rashpinder Kumar .... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Manish Soni, Advocate for the applicant. Mr. G.S. Sandhu, Advocate for the respondent. Rajesh Bindal J. C.M. No.24217-CII of 2010 The application is allowed. Amended Transfer Application is taken on record. T.A. No.111 of 2010 Prayer in the present application is for transfer of divorce petition titled as “Rashpinder Kumar v. Madhu Bala” filed by the respondent/husband against the applicant-wife under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') from the Court of learned District Judge, Patiala to the court of competent jurisdiction at Yamuna Nagar. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites on 2.12.1999 at Village Barara, District Ambala (Haryana). Out of the wedlock, one son and a daughter, namely, Priyanshu and Arshita @ Anjali were born on 19.12.2000 and 19.4.2003 respectively. After the marriage, the respondent and his parents never allowed her to settle in the matrimonial home. She was turned out of the matrimonial home in the month of September, 2007. In the month of May, 2009, respondent came to her parental house and forcibly took away the minor son from the custody of the applicant. She along with her minor daughter is now living at Yamuna Nagar at the mercy of her parents. She has no source of income. She filed a petition under Section 125 of the Code of Criminal Procedure seeking maintenance from the respondent, which is pending at Jagadhri. She had T.A. No. 111 of 2010 [ 2] also filed a petition under Sections 7, 10 and 25 of the Guardian and Wards Act, 1890 against the respondent in the Court of Civil Judge (Senior Division)-cum- District Guardian Judge, Yamuna Nagar for custody of her minor son. The respondent has filed divorce petition only to harass her. There is no one in the family to accompany her to attend the court proceedings at Patiala. The submission is that it is difficult for the applicant to attend the hearings of the petition filed by the respondent-husband at Patiala, being a poor lady, who is living along with her minor daughter at the mercy of her parents with no source of income. The distance between two places is 150 Km. It is the convenience of the wife which is to be seen. Considering the aforesaid facts, the petition filed by the husband at Patiala be transferred to the Court of competent Jurisdiction at Yamuna Nagar. On the other hand learned counsel for the respondent opposed the prayer made by the learned counsel for the applicant. It was submitted that as the petition filed by the respondent is of civil nature, she need not visit the court regularly. The respondent apprehends his involvement in a false case, in case he visits Yamuna Nagar, as father of the applicant is posted as ASI at Yamuna Nagar. He further submitted that in case still this Court finds that it is a case where the divorce petition filed by him is to be transferred from Patiala, the same may be transferred to some other place. Heard learned counsel for the parties. The issue regarding transfer of case from one Court to another has been discussed by Courts in numerous judgments. In Kulwinder Kaur @ Kulwinder Gurcharan Singh vs Kandi Friends Education Trust and others, 2008 (3) SCC 659, the Hon'ble Supreme Court laid down certain parameters to be considered for the purpose, while opining that the same cannot be treated as exhaustive but illustrative in nature. The relevant Para-14 thereof is extracted hereunder: “Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. 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 plaintiff or defendant or witnesses; convenience or T.A. No. 111 of 2010 [ 3] 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 proceedings. 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." The issue regarding transfer of matrimonial proceedings almost in similar circumstances came up for consideration before this Court as well in a number of cases earlier. It has been the consistent view that primarily the convenience of the wife is to be given weightage for ordering transfer of proceedings at or near the place where she is residing. In Veena alias Arti vs Pawan Kumar, 1998(1) RCR (Civil) 558 (P&H) : 1998 (1) M.L.J. 316, the proceedings under Section 9 of the Act filed by the husband at Sultanpur Lodhi were ordered to be transferred to Amritsar by this Court. In Smt. Sonia vs Rajnish Kumar Arora, 1997 (2) RCR (Civil) 361 (P&H) : 1998 (1) M.L.J. 37, this Court ordered transfer of petition under Section 9 of the Act from Ludhiana to Amritsar. On yet another occasion in Suman vs Gopal, 2003 (4) RCR (Civil) 26, having regard to the observations of the Supreme Court in Sumita Singh vs Kumar Sanjay and another, A.I.R. 2002 SC 396 and Neelam Kanwar vs Devinder Singh Kanwar, 2001 (1) M.L.J. 509 (S.C.), this Court ordered the transfer of matrimonial proceedings from Gurgaon to Faridabad. The relevant observations from Neelam Kanwar's case (supra) are extracted as under:- “We are midful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reasons not to do so. No special reason is shown.” T.A. No. 111 of 2010 [ 4] In Milli vs Mukesh Kumar, 2005 (4) RCR (Civil) 422, a petition filed under Section 9 of the Act, for restitution of conjugal rights, was ordered to be transferred from Jagadhari to Amritsar on an application filed by the wife. As is evident from the cases referred to above, the principle of law with regard to transfer of cases especially regarding matrimonial disputes is quite settled, where consistent opinion is that it is always the convenience of wife which has to be given due weightage for ordering the transfer of proceedings at or near the place where the wife is residing. In the present case, the applicant-wife is residing along with her minor daughter at her parental house at Yamuna Nagar. The petition for divorce has been filed by the husband at Patiala. Two petitions filed by the wife are already pending at Yamuna Nagar. It would certainly be difficult for the wife to travel from Yamuna Nagar to Patiala along with minor daughter. Though convenience of the wife is considered paramount, but still in the facts and circumstances of the case, even the apprehension of the respondent-husband also cannot be brushed aside, in case the divorce petition is transferred to Yamuna Nagar. Considering the aforesaid facts, in my opinion, it would be appropriate if the proceedings in the divorce petition are transferred to Ambala from Patiala. The parties are directed to appear before District Judge, Ambala on 30.10.2010 for further proceedings. District Judge, Ambala may either keep it with him or entrust the same to any other competent court. The application stands disposed of. (Rajesh Bindal) Judge 22.9.2010 mk