Rajesh Bindal, J.@mdashPrayer in the present application is for transfer of petition, titled as Harpreet Singh v. Bhinder Kaur filed u/s 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 (Sr. Division), Malerkotla to the Court of competent jurisdiction at Moga.
2. Learned Counsel for the applicant submitted that marriage of the applicant was solemnised with the respondent according to Sikh rites at village Tharaj District Moga on 16.1.2005. Out of the wedlock a female child was born. The applicant was turned out of matrimonial home along with minor child. As all efforts for reconciliation thereafter remained futile, the applicant lodged FIR No. 75 dated 16.3.2008 u/s 406, 498-A IPC, at P.S. Baghapurana District Moga and also filed an application u/s 125 Cr.P.C. for grant of maintenance at Moga. As a counter blast to the aforesaid cases filed by the applicant, the respondent filed a petition u/s 9 of the Hindu Marriage Act at Malerkotla. The submission is that it is difficult for the applicant to attend the hearings of the petition u/s 9 of the Act filed by the respondent-husband at Malerkota, being a poor lady, who is living 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 Malerkotla. Distance between village Tharaj, Tehsil Baghapurana District Moga to Malerkotla is 120 kilometers. 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 petition u/s 9 of the Act filed by the husband at Malkerkotla be transferred to the Court of competent Jurisdiction at Moga.
3. On the other hand Learned Counsel for the respondent submitted that the husband is not responding inspite of his calls and sought permission to withdrawn the power of attorney. He may do so but no fresh service is required as the respondent is already served.
4. Heard Learned Counsel for the parties and perused the record.
5. The issue regarding transfer of case from one Court to another has been discussed by Courts in numerous judgments. In
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.
6. 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.
7. In Veena alias Arti v. Pawan Kumar 1998(1) RCR (Civil) 558 (P&H) : 1998 (1) M.L.J. 316. the proceedings u/s 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 u/s 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
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.
8. In Milli v. Mukesh Kumar 2005 (4) RCR (Civil) 422, a petition filed u/s 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.
9. 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.
10. In the present case, the applicant-wife is residing at village Tharaj Tehsil Baghapurana District Moga. Two cases filed by the applicant are already pending at Moga. The petition u/s 9 of the Act was subsequently filed by the husband at Malerkotla. It would certainly be difficult and in-convenient for the wife living with minor child at the mercy of her parents, to attend hearing of the petition u/s 9 of the Act at Malkerkotla. Considering the fact that it is the convenience of the wife which is the paramount consideration, in my opinion, the petition u/s 9 of the Act filed by the respondent which is pending in the Court of Civil Judge (Sr. Division), Malkerkota titled as Harpreet Singh v. Bhinder Kaur, deserves to be transferred to the Civil Judge (Sr. Division), Moga.
11. Ordered accordingly. Parties are directed to appear before Civil Judge (Sr. Division), Moga 10.9.2010 for further proceedings. The Civil Judge (Sr. Division), Moga may either keep the same it with him or entrust the same to any other competent Court.
12. The application stands disposed of accordingly.
