Arvind Singh Sangwan, J
CM-7095-CII-2022
For the reasons stated in the application, same is allowed and Annexures A-1 & A-2 are taken on record.
CM stands disposed of.
Prayer in this petition is for transfer of the petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, pending before the
Family Court, Karnal to the competent Court of jurisdiction at Ambala.
While issuing notice of motion, following order was passed by this Court on 15.12.2021: -
“Learned counsel for the petitioner would contend that the petitioner-wife would have to travel a distance of about 90 kilometres (one way) from
her place of residence in Ambala Cantt. in order to attend the proceedings initiated by the respondent-husband under Section 9 of the Hindu Marriage
Act, 1955 for restitution of conjugal rights vide HMA No.796/2021 in the Court of Principal District Judge (Family Court), Karnal and, hence, she
would not be able to properly defend her case on each and every date of hearing. It is further contended that three other cases initiated by the
petitioner - (i) FIR No.77 dated 13.08.2021 under Sections 406, 498-A, 323, 506, 377, 313 IPC with Women Police Station Ambala, (ii) Criminal
Complaint bearing No.DV/192/2021 in the Court of JMIC, Ambala and (iii) petition under Section 125 CrPC in the Court of Principal Judge, Ambala -
are already pending at Ambala.â€
Learned counsel has relied upon the judgments Sumita Singh Vs. Kumar Sanjay, 2002 SC 396 and Rajani Kishor Pardeshi Vs. Kishor Babulal
Pardeshi, 2005(12) SCC 237, wherein the Hon’ble Supreme Court observed that while deciding the transfer application, the Courts are required to
give more weightage and consideration to the convenience of the female litigants and transfer of legal proceedings from one Court to another should
ordinarily be allowed, taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships.â€
Learned counsel has further relied upon N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha, 2022 Live Law (SC) 627, wherein the Hon’ble
Supreme Court held as under: -
“The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer
of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to
take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life
prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective
umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife’s
convenience which must be looked at while considering transfer.
Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and
when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial
of the same issues and conflict of decisions.â€
As per office report, the respondent is served through his father, however, there is no representation on his behalf.
It is well settled that while considering the transfer of a matrimonial dispute/case at the instance of the wife, the Court is to consider family condition
of the wife, custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important,
convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place to and fro from her
place of residence as well as bearing of the litigation charges and travelling expenses.
After hearing the counsel for the petitioner, considering the fact that the petitioner-wife will have to bear the litigation expenses and transportation
expenses and in view of the judgments in Sumita Singh’s case (supra), Rajani Kishor Pardeshi’s case (supra) and N.C.V. Aishwarya’s
case (supra) passed by the Hon’ble Supreme Court, this Court deem it appropriate to allow the present petition, subject to the following
conditions:-
1. The petition filed under Section 9 of the Hindu Marriage Act, pending before the Family Court, Karnal will be transferred to the competent Court of
jurisdiction at Ambala.
2. The District Judge, Ambala will assign the said petition to the competent Court of jurisdiction.
3. The Family Court, Karnal is directed to transfer all the record pertaining to the aforesaid case to District Judge, Ambala.
4. The parties are directed to appear before the Family Court, Ambala within a period of 01 month from today.
5. The Family Court, Ambala will make all the endeavour to refer the case before the Mediation and Conciliation Centre for exploring the possibility of
amicable settlement between the parties.
6. The Court concerned, where the litigations between the parties are pending, will accommodate them with one date in one calender month.
Present petition is disposed of accordingly.