Bharti vs Dr. Ravi Sharma

Dev Darshan Sud, J.—The petitioner has instituted this petition under Article 227 of the Constitution of India and Section 24 read with Section 151 of the CPC with a prayer that the case instituted by the respondent-husband seeking decree of divorce be transferred from the Court of learned Additional District Judge-(I), Kangra at Dharamshala to learned District Judge at Mandi. A number of allegations have been made in the petition primarily that the petitioner is staying with her parents and cannot attend Court at Dharamshala. She is accompanied by her aged father. On 25th April, 2012 to attend the Court at Dharamshala, on which date the case was again adjouned for 31st May, 2012. It is submitted that her younger daughter aged about two years is not keeping good health and is being treated at Mandi, she does not have enough funds to travel/stay at Dharamshala.

I have heard learned counsel for the parties.

In CMPMO No.106 of 2012, titled: Ms. Deepa Kumari vs. Ashwani K. Lal, this Court holds:

A bare perusal of this provision shows that the proceedings under the Act can be commenced at the place where the marriage was solemnized; at the place where the respondent at the time of presentation of petition resides and at the place where the parties last resides together. By amendment of 2003, clause 3(a) has been added which provides that in case the wife is the petitioner she can file the petition at the place where she is residing. However, this does not mean that in case the husband files the petition at the place where marriage was solemnized or at the place where the couple last resided together the case must be transferred to the place where the wife resides.

On the other hand Sh. K.D. Sood, learned counsel for the respondent has relied upon the judgments of the Apex court in Kalpana Deviprakash Thakar (Smt) Vs. Dr Deviprakash Thakar, and Damyanti Devi vs. Indrajeet, 2008 (1) CCC 149 (SC).

True it is that the convenience of the wife should be taken into consideration but this will have to depend on the facts and circumstances of each case. It cannot be laid down that in every case the petition must be transferred to the court in whose jurisdiction the wife resides.

In matrimonial proceedings it is not

mandatory for a party to be present in the Court on each and every date when the petition is taken up for hearing. The petitioner can very well instruct counsel, which instruction can be imparted by personal meeting, in writing or by the other means of communication. To urge that the petitioner requires to travel to attend the Court on each and every date, cannot be accepted as ground for transfer, since there is no statutory condition requiring such presence.

There can be no doubt about the proposition of law (supra). In these circumstances this petition is disposed of with the directions:

(a) that the respondent shall pay to the petitioner expenses for travelling as also staying at Dharamshala for the dates so fixed by the Court when the petitioner is required to travel to Dharamshala to attend proceedings and for recording evidence etc. in this case.

(b) Stay and traveling expenses shall also include those for her daughter who accompanies the petitioner as also an attendant/other relative who would be traveling with her.

(c) A direction is also issued to the learned trial Court not to order the presence of the petitioner on every date of hearing and only to ask for her attendance when it is absolutely essential in accordance with law.

The learned Court, trying the case at Dharamshala, will ensure that no adjournment shall be granted at the behest of the respondent. Adjournment shall only be granted when it becomes absolutely essential and requires in the interest of justice. The case shall be disposed of as expeditiously as possible. The petition is disposed of.

All miscellaneous applications are disposed of.