M.M. Kumar, C.J.@mdashThis order shall dispose of CTA no. 48/2012 along with IA(C) No. 522/2012 as well as CTA No. 49/2012 along
with IA(C) No. 523/2012 as the parties to both the applications* are the same. The petitioner-Sunita Bali has approached this Court with a prayer
for transfer of petition filed by her former husband-Rakesh Bhat u/s 25 of the Guardians and Wards Act, 1890 titled Rakesh Bhat v. Sunita Bali
from the Court of Additional District Judge (Matrimonial Cases), Jammu to any other Court of competent jurisdiction at Srinagar. In other
application namely Transfer Application No. 49/2012 similar prayer has been made for transferring the Suit bearing No. 155/Suit of 2012 from the
Court of Sub Judge (Chief Judicial Magistrate), Jammu to any other Court of competent jurisdiction at Srinagar.
2. Brief facts may first be noticed. The parties to the litigation had married each other in the year 2004 and out of the wedlock one son namely
Maanav Bhat was born in 2005. On account of temperamental incompatibility their marital relationship deteriorated and their marriage was on
rocks. Respondent-Rakesh Bhat had initiated proceedings for dissolution of marriage in the Court of Additional District Judge (Matrimonial
Cases), Jammu and the marriage was eventually dissolved by passing a consent decree on 15.12.2010 (Annexure-PA). It would be profitable to
read the order dated 15.12.2010 passed by the Additional District Judge (Matrimonial Cases), Jammu in file No. 426/HMA. The order is
reproduced in extenso as under:-
Consequent upon the reference made by Ld. Addl. Distt. Judge (Matrimonial Cases), Jammu, the petition U/S. 15 of J & K Hindu Marriage Act,
1980 was taken up for settlement through negotiation, mediation and conciliation. The parties arrived at an amicable settlement in terms whereof
the spouses agreed to dissolve the marriage on the ground that by a decree of divorce by mutual consent. Statements of the parties in support of
terms and settlement stands recorded. Award is accordingly passed in terms of the settlement which shall be deemed to be part of this award.
Marriage solemnized between the petitioner No. 1 and petitioner No. 2/Respondent according to Hindu Rites and Ceremonies on _______2010
shall stand dissolved. Record be sent back to the court of Ld. Addl. District Judge (Matrimonial Cases), Jammu. Minor Maanav Bhat shall remain
in the custody of mother. However father shall have right to meet his son on every Monday during recess in school premises on month (sick) and
shall deposit monthly maintenance @ 2000/- to the minor. Sunita Bali has received Rs. One lac as permanent alimony. Now nothing is outstanding
against each other. Father shall process State Subject to the minor within a period of one year. If on Monday father is unable to meet the minor he
shall meet the minor on the day following in School Premises.
(emphasis added)
3. The aforesaid order was admittedly modified that if the father was not able to meet his minor son Maanav Bhat on Monday then he could meet
him any day.
4. A Suit has also been filed by the former husband-respondent challenging the order passed by the State Government deleting the name of Master
Maanav Bhat from his Ration Card at Jammu and adding the same to the Ration Card of wife-petitioner at Srinagar.
5. The pleadings further reveal that the petitioner-Sunita Bali is a Government employee and continuously living in Kashmir Valley on account of
her posting there. She is unable to attend the cases instituted by her former husband-respondent, which may result in jeopardizing her career and
also bringing adverse effect on the environment of the minor child. On the contrary, her former husband-respondent, who is registered as a migrant
continues to be Government employee and is not in active service. He has been visiting Kashmir Valley of and on to meet his child. He can
conveniently prosecute his proceedings at Srinagar and it would create convenient place of adjudication for the petitioner-wife.
6. I have heard learned counsel for the parties at considerable length and am of the view that the proceedings in application u/s 25 of the Guardians
and Wards Act initiated by the former husband-respondent and the suit filed by him at Jammu bearing No. 155 of 2012 deserve to be transferred
to a competent Court of jurisdiction at Srinagar.
7. It is well settled that the convenience of the wife is to be kept in view in such like situations. For the aforesaid view, reliance may be placed on
the judgments of Hon'ble the Supreme Court in Sumita Singh Vs. Kumar Sanjay and Another, and Deepti Bhandari Vs. Nitin Bhandari and
Another, . In the latter judgment rendered in Deepti Bhandari's case, the parties were litigating by instituting various cases emerging from the
matrimonial disputes at Jaipur (Rajasthan). The husband was residing at Jaipur whereas wife was resident of Delhi. Wife sought transfer of the
cases from Jaipur to Delhi. After considering the rival claims, their Lordships of the Supreme Court held that in comparison to the convenience of
the husband it would be more convenient for the wife to prosecute and defend the cases at Delhi instead of Jaipur. In para-14 some pertinent
observations have been made which would lend ample support to the arguments advanced by Mr. Khawaja and the same read as under:-
14. It is true that transfer of the several cases to Delhi is likely to cause some inconvenience to the Respondent No. 1 and his family members, but
it cannot be denied that it would be easier for the Respondent No. 1 to attend to the proceedings in Delhi than for the Petitioner to attend to the
same in Jaipur, while staying in Delhi with her minor child. We, therefore, see no substance in the persistent demand of the Respondent No. 1 that
he should be allowed to meet the Petitioner and their minor child at Jaipur to enable him and his family members to meet the child on a regular
basis. In our view, it is the Respondent No. 1 who should make an effort to meet his minor child in Delhi as and when he wishes to do so. The
petitioner can have no objection whatsoever to such an arrangement and must also ensure that the child is able to meet her father in terms of the
order of this Court on all weekends in New Delhi instead of the second and fourth Saturday of each month.
16. The application for modification of the order dated 8th April 2010, filed by the Petitioner before the High Court on 30th April, 2010, which
was dismissed by the high Court, is, accordingly allowed along with the Transfer Petitions filed by the Petitioner. The order of 8th April, 2010, is
modified to the extent indicated above, whereby the Respondent No. 1 and his parents will be entitled to meet the minor child, Mannat, on every
Saturday in New Delhi, between 10.00 a.m. and 9.00 p.m. In the event, the child is willing, the Respondent No. 1 may also take her out for the
day and return her to the custody of the Petitioner within 6.00 p.m. This arrangement will continue, until further orders.
17. In addition, Transfer Petition (Civil) Nos. 856-857 of 2010 filed by the Petitioner are allowed. Let Case No. 279 of 2009, which had been
filed by the Respondent No. 1 u/s 9 of the Hindu Marriage Act and case No. 65 of 2009, also filed by him u/s 25 of the Guardians and Wards
Act, 1890, be transferred from the Family Court at Jaipur to a Family Court of competent jurisdiction in Delhi. The transferor Court is directed to
send the records of the aforesaid cases to the transferee Court, so that the matter may be heard and disposed of by the transferee Court with the
utmost expedition.
(emphasis added)
8. The policy of law is discernible from the aforesaid judgments that on comparison, if it is more convenient for the wife to defend and prosecute
case at particular place then preference should be given to such place. When the aforesaid policy of law is applied to the facts of the present case,
it becomes evident that the prayer made by the petitioner is meritorious. It has also come on record that the petitioner is a Government employee
serving in Kashmir Province and is presently posted at Srinagar. The minor child as per the decree of divorce dated 15.12.2010 passed on the
basis of mutual consent of the parties expressly states that the minor child would stay with the mother. The father has been given visiting rights only.
Accordingly, he has been visiting the child at Srinagar. It is further clear that the former husband-respondent is registered as migrant and is
withdrawing full salary of the post held by him before migration. He is not in active service of the State Government, which further makes it more
convenient for him to visit Srinagar than for the wife to visit Jammu who has to attend to her duties and the child as well. Therefore, I am of the
view that the ends of justice would be served if the petition u/s 25 of the Guardian and Wards Act titled Rakesh Bhat v. Sunita Bali pending before
the Court of Additional District Judge (Matrimonial Cases), Jammu and Civil Suit bearing No. 155/- suit of 2012 are transferred to the Courts of
competent jurisdiction at Srinagar.
9. In view of the above, both the applications are allowed. It is directed that proceedings in the aforesaid two cases pending at Jammu shall be
transferred to Courts of competent jurisdiction at Srinagar.
10. Principal District Judge, Jammu is directed to withdraw the aforesaid proceedings and send the original record of both the cases to the
Principal District Judge, Srinagar without any delay. Principal District Judge, Srinagar shall entrust the cases to the Courts of competent
jurisdiction. The parties through their learned counsel are directed to appear before the learned Principal District Judge, Srinagar on 17.06.2013.
