T.A. No. 339 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Transfer Application No. 339 of 2009 (O&M) Date of Decision: 27.7.2010. Navdeep Kaur ....Applicant Versus Pawan Kumar ...Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. P.K.S. Phoolka, Advocate for the applicant. None for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of suit dated 18.8.2009 (Annexure A-1), titled as Pawan Kumar Vs. Navdeep Kaur, pending in the Court of Civil Judge (Sr. Division), Ambala to Bathinda. Service of respondent is complete. However, at the time of hearing, no one appeared for him. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites at Ambala on 10.3.2007. One male child was born out of the wedlock on 16.6.2008. The applicant was turned out of matrimonial home. As all efforts for reconciliation thereafter remained futile, the applicant moved an application before Women Cell, Bathinda, for mental and physical harassment. As a counter blast to the aforesaid application filed by the applicant, the respondent filed a suit for grant of decree of mandatory injunction directing the applicant-wife to take back the articles of dowry at Ambala. Thereafter, applicant filed a petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights, at Bathinda. The submission is that it is difficult for the applicant to attend the hearings of the suit filed by the respondent-husband at Ambala, being a poor lady, who is living along with minor child, 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 Ambala. It is the convenience of the wife which is to be T.A. No. 339 of 2009 2 seen. Considering the aforesaid facts, the suit filed by the husband at Ambala be transferred to the Court of competent Jurisdiction at Bathinda. No one had appeared for the respondent at the time of hearing to controvert the argument raised by the learned counsel for the applicant. 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 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." T.A. No. 339 of 2009 3 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:- “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 Bathinda. T.A. No. 339 of 2009 4 Another case filed by her is also pending at Bathinda. The suit was filed by the husband at Ambala. It would certainly be difficult and in-convenient for the wife living at the mercy of her parents, to attend hearing of the suit at Ambala. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the suit filed by the respondent which is pending in the Court of Civil Judge (Sr. Division), Ambala titled as Pawan Kumar Vs. Navdeep Kaur, deserves to be transferred to the Civil Judge (Sr. Division) Bathinda. Ordered accordingly. Parties are directed to appear before Civil Judge (Sr. Division), Bathinda on 18.9.2010 for further proceedings, who may either keep the same himself or entrust to any other Court. As the respondent remained unrepresented before this Court, the factum regarding the transfer of the suit from Ambala to Bathinda shall be brought to the notice of the respondent or his counsel by the Court concerned at Ambala on the next date of hearing fixed before it. The application stands disposed of accordingly. (RAJESH BINDAL) 27.7.2010. JUDGE Reema