T.A. No. 147 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Transfer Application No. 147 of 2010 (O&M) Date of Decision: 13.7.2010. Manpreet Kaur ....Applicant Versus Ranjit Singh ...Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Arun Takhi, Advocate for the applicant. None for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of petition, titled as Ranjit Singh vs. Manpreet Kaur alias Meenu 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) Patti, District Tarn Taran to the Court of competent jurisdiction at Hoshiarpur. Service of respondent is complete. However, at the time of hearing, no one had appeared for him. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Sikh rites at village Khawaspur (Piplianwala) District Tarn Taran on May 5, 2005. The applicant was deserted on 20.2.2008. Out of the wedlock, a male child was born on 11.9.2008. As all efforts for reconciliation thereafter remained futile, the applicant filed an application under Sections 12 and 17 of the Protection of Women from Domestic Violence Act, 2005 ( for short ' the DV Act') against the respondent and his family members on 2.2.2009 which is pending before Judicial Magistrate Ist Class, Hoshiapur, in which the service is being avoided by the respondent. As a counter blast to the aforesaid application filed by the applicant, the respondent filed a petition under Section 9 of the Act at Patti on 2.2.2010. The submission is that it is difficult for the applicant to attend the hearings of the petition under T.A. No. 147 of 2010 -2- Section 9 of the Act filed by the respondent-husband at Patti, being a poor lady, with a male child, who is living at the mercy of her parents with no source of income. Father of the applicant is a Granthi. The applicant is not even being paid any maintenance. The respondent-husband is employed in Hero Honda Agency at Chabbal and drawing about Rs. 5,000/- per month. The distance between Patti and Hoshiarpur is about 100 kilometers. It was further submitted by learned counsel for the applicant that though the respondent-husband is having knowledge of the application filed by the applicant-wife under the DV Act at Hoshiarpur as this fact has been mentioned by him in the petition filed under Section 9 of the Act, but still service of notice in that application is being avoided by him and now bailable warrants have been issued. 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 Patti be transferred to the Court of competent jurisdiction at Hoshiarpur. 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 T.A. No. 147 of 2010 -3- 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:- “We are midful of the fact that the petitioner is a lady and T.A. No. 147 of 2010 -4- 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 Hoshiarpur. An application filed by her under the DV Act, which is prior in time, is also pending at Hoshiarpur. The petition under Section 9 of the Act was subsequently filed by the husband at Patti. 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 Patti. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition titled as Ranjit Singh vs. Manpreet Kaur alias Meenu filed under Section 9 of the Act, by the respondent-husband pending in the Court of Civil Judge (Junior Division) Patti, District Tarn Taran deserves to be transferred to the Court of competent jurisdiction at Hoshiarpur. Ordered accordingly. Parties are directed to appear before Civil Judge (Sr. Division), Hoshiarpur, on 31.8.2010 for further proceedings. The Civil Judge (Sr. Division), Hoshiarpur, may either keep the petition with himself or entrust the same to any other competent Court. As the respondent remained un-represented before this Court at the time of hearing, the factum regarding transfer of the proceedings from the Court at Patti to Hoshiarpur shall be intimated to the respondent on the next date of hearing fixed at Patti. However, in case the date of such hearing is after the T.A. No. 147 of 2010 -5- date fixed by this Court for appearance at Hoshiarpur, the learned Court below at Patti shall pre-pone the date of hearing therein and intimate the counsel after issuing notice for the date prior to August 31, 2010. As regards service of respondent in the application filed by the wife under the DV Act is concerned once the factum of pendency of such an application is admitted by husband himself in para 13 of the petition filed by him under Section 9 of the Act, his service in the application filed by the wife shall be deemed to be complete and the Court shall be entitled to take appropriate steps to procure his presence, as are permissible in law, in case of non-appearance of the party concerned in those proceedings. A copy of the present order shall also be placed on file of the application filed by the applicant under the DV Act, which is pending before Judicial Magistrate Ist Class, Hoshiarpur. The application stands disposed of accordingly. (RAJESH BINDAL) 13.7.2010. JUDGE Reema (Refer to Reporter)