T.A. No. 350 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Transfer Application No. 350 of 2009 (O&M) Date of Decision: 29.7.2010. Paramjit @ Paramjit Kaur ....Applicant Versus Partap ...Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Diwan S. Adlakha, Advocate for the applicant. Mr. Rakesh Mohan Jain, Advocate for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of petition, titled as Partap Vs. Paramjit filed under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act') for restitution of conjugal rights by the respondent-husband from the Court of Civil Judge (Junior Division), Chandigarh 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 at Yamuna Nagar on 9.3.1993. Two male children were born out of the wedlock. The applicant was turned out of the matrimonial home on 6.3.2006 along with the minor children. The respondent did not disclose the applicant that he was having two children from his previous marriage. As all efforts for reconciliation thereafter remained futile, the applicant filed an application to Mahila Mandal Yamuna Nagar where the respondent begged pardon and assured not to harass her. Thereafter, the applicant filed a complaint to Superintendent of Police, Yamuna Nagar and an application under Section 125 Cr.P.C. in the year 2003, in which also respondent felt sorry and again assured not to harass the applicant for demand of dowry. A compromise to that effect was reduced into writing between the parties on 3.2.2004. Ultimately the respondent was turned out of the matrimonial home along with minor children on 6.3.2006. The applicant filed T.A. No. 350 of 2009 2 an application under Section 125 Cr.P.C. at Jagadhri. As a counter blast to the aforesaid application filed by the applicant, the respondent filed a petition under Section 9 of the Act at Chandigarh. The petition under Section 9 of the Act was dismissed for non appearance vide order dated 5.3.2008. The respondent has again filed an application for restoration of petition under Section 9 of the Act, which is still pending. The respondent is working as Sweeper in PGI, Chandigarh and drawing a salary of ` 8,000/- per month. The submission is that it is difficult for the applicant to attend the hearings of the petition under Section 9 of the Act filed by the respondent-husband at Chandigarh, being a poor lady, who is living along with two children at the mercy of her parents with no source of income. No one is there in the family to accompany her to attend hearings of the case at Chandigarh. It is the convenience of the wife which is to be seen. Considering the aforesaid facts, the petition under Section 9 of the Act filed by the husband at Chandigarh 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 applicant and prayed that the petition under Section 9 of the Act be not transferred to the Court at Yamuna Nagar. Heard learned counsel for the parties and perused the record. 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 T.A. No. 350 of 2009 3 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 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 v. 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 v. 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 v. Gopal, 2003 (4) RCR (Civil) 26, having regard to the observations of the Supreme Court in Sumita Singh v. Kumar Sanjay and another, A.I.R. 2002 SC 396 and Neelam Kanwar v. 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:- T.A. No. 350 of 2009 4 “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.” 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 at Yamunagar. An application filed by her under Section 125 Cr.P.C., which is prior in time, is also pending at Jagadhari, District Yamuna Nagar. The application for restoration of petition under Section 9 of the Act is pending at Chandigarh. It would certainly be difficult and in-convenient for the wife living at the mercy of her parents, to attend hearing of the petition under Section 9 of the Act at Chandigarh. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition under Section 9 of the Act filed by the respondent which is pending in the Court of Civil Judge (Junior Division), Chandigarh titled as Partap Vs. Paramjit, deserves to be transferred to the Civil Judge (Sr. Division), Yamuna Nagar. Ordered accordingly. Parties are directed to appear before Civil Judge (Sr. Division), Yamuna Nagar on August 21, 2010 for further proceedings. The Civil Judge (Sr. Division), Yamuna Nagar, may either keep the same with him or entrust the same to any other competent Court. The application stands disposed of accordingly. (RAJESH BINDAL) 29.7.2010. JUDGE Reema