T.A. No. 244 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Transfer Application No. 244 of 2010 (O&M Date of Decision: 4.8.2010. Preeti ....Applicant Versus Deepak Sharma ....Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Arvind Singh, Advocate for the applicant. Mr. Ajit Attri, Advocate for the respondent. RAJESH BINDAL J Prayer in the present application is for transfer of divorce petition, titled as Deepak Sharma Vs. Preeti filed under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') by the respondent-husband from the Court of Addl. District Judge (Fast Track Court), Kurukshetra to the Court of competent jurisdiction at Karnal. Learned counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Hindu rites at Karnal on 11.10.1997. Two children were born out of the wedlock. Initially, the applicant got FIR registered against the respondent under Section 498-A IPC. However, the same was compromised and the FIR was got cancelled. The respondent had also filed a petition under Section 9 of the Act which was withdrawn by the respondent and in good faith the petitioner signed on the statement considering the tender age of children and the said petition was disposed of on 19.9.2006. Again, the applicant was turned out of matrimonial home on 24.9.2007 after giving severe beatings. As all efforts for reconciliation thereafter remained futile, the applicant again got registered a case under Sections 406, 498-A, 420, 506 IPC at Karnal on 7.3.2008 and also filed an application under Section 125 Cr.P.C. for grant of maintenance for herself and the children at Karnal. The respondent filed a divorce petition at Kurukshetra on 1.10.2007. Thereafter, before Mediation Centre vide order dated 19.9.2009 an award was passed and it T.A. No. 244 of 2010 2 was settled between the parties that the applicant will withdraw her application under Section 125 Cr.P.C. and respondent will withdraw his divorce petition and both will reside together as husband and wife. Thereafter in pursuant to award dated 19.9.2009 the FIR was quashed vide order dated 17.11.2009. Still the behaviour of respondent was not so good, he again gave beatings to the applicant and minor children and deserted them. Thereafter, again the respondent filed a divorce petition on 20.4.2010 at Kurukshetra. The respondent is a Govt. servant. The submission is that it is difficult for the applicant to attend the hearings of the divorce petition filed by the respondent-husband at Kurukshetra, being a poor lady, who is living with two school going 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 Kurukshetra. The applicant is not even being paid any maintenance. It is the convenience of the wife which is to be seen. Considering the aforesaid facts, the divorce petition filed by the husband at Kurukshetra be transferred to the Court of competent Jurisdiction at Karnal. On the other hand learned counsel for the respondent opposed the prayer made by the learned counsel for the applicant and submitted that the respondent has a widow mother who is staying with him at Kurukshetra and the applicant-wife wants to live at Karnal only and it is not possible for him to leave her mother alone at Kurukshetra. It is further submitted that ` 5.10 lacs have been paid to the applicant-wife when earlier the dispute was settled. In fact she is after money. 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 T.A. No. 244 of 2010 3 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." 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 T.A. No. 244 of 2010 4 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 Karnal. Earlier the cases were filed by the applicant at Karnal. Despite settlement, the divorce petition was again filed by the husband at Kurushetra. It would certainly be difficult and in-convenient for the wife living with two school going children at the mercy of her parents, to attend hearing of the divorce petition at Kurukshetra. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the divorce petition filed by the respondent which is pending in the Court of Addl. District Judge (Fast Track Court), Kurukshetra, titled as Deepak Sharma Vs. Preeti, deserves to be transferred to the District Judge, Karnal. Ordered accordingly. Parties are directed to appear before District Judge, Karnal on 10.9.2010 for further proceedings. The District Judge may T.A. No. 244 of 2010 5 either keep the same with him or entrust the same to any other competent Court. The application stands disposed of accordingly. (RAJESH BINDAL) 4.8.2010. JUDGE Reema