Harsha Pant vs Yogesh Chandra Pant

Lok Pal Singh, J

Present transfer application under Section 24 of C.P.C. has been filed by the applicant-wife seeking transfer of Suit No.99 of 2019, under Section 13-A of Hindu Marriage Act, 1955, Yogesh Chandra Pant vs. Smt. Harsha Pant, pending before the Principal Judge, Family Court Camp, Ramnagar, District Nainital to the court of Family Judge, Almora.

Facts, in brief, are that the marriage between the applicant and respondent was solemnized on 24. 04.2016. The applicant, prior to her marriage, was posted at S.B.I. Kusumkheda, Haldwani and thereafter she sought her transfer from S.B.I. Haldwani to S.B.I. Ramnagar, which was acceded. Out of the wedlock, one female child was born on 25.02.2017. Thereafter, some differences cropped up between the parties and they started residing separately. Meanwhile, the respondent/ husband instituted a suit being numbered as Suit No.344 of 2017 under Section 9 of Hindu Marriage Act before the Family Court Camp Ramnagar District Nainital, which however was dismissed as withdrawn. Thereafter, on her request, she was transferred from Ramnagar District Nainital to Someshwar District Nainital. As the applicant was residing with her daughter separately in a rented accommodation, she filed an application u/s 125 of Cr.P.C. During the pendency of application u/s 125 of Cr.P.C., parties entered into compromise on 26.6.2018 and lived together for few days. However, after some time their relationship again become strained and the respondent filed the suit being Suit No.99 of 2019 under Section 13-A of Hindu Marriage Act before the court of Family Judge Camp at Ramnagar District Nainital.

It is contended that the applicant is posted at Someshwar and the distance from Ramnagar to Someshwar is about 150 kms whereas the distance between the Someshwar to Almora is about 62 kms. Hence, a prayer has been made to transfer the said suit to the court at Almora.

Respondent has filed the counter affidavit stating that the applicant was posted at Regional Branch Office SBI Kusumkheda, Haldwani District Nainital prior to her marriage and after marriage she was transferred to S.B.I. Pirumdara Branch District Nainital due to her pregnancy. It is stated that the applicant without knowledge and consent of the respondent, sought her transfer from S.B.I. Ramnagar, District Nainital to S.B.I. Someshwar, District Almora.

Heard learned counsel for the parties and perused the entire material.

Learned counsel for the applicant has placed reliance upon a judgment of Hon'ble Apex Court rendered in the case of Krishna Veni Nagam vs. Harish Nagam (2017) 4 SCC 150 and has referred paragraph-13, which is reproduced hereunder:-

"13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network W.S.G. Cricket Pte. Ltd. this Court observed: (SCC p.356-57, para-19)

"19. In Spiliada Maritime case the House of Lords laid down the following principle:

'The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interests of all the parties and for the ends of justice...'

The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances mitigating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried."

Though these observations have been made in the context of granting anti-suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed.

we, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:

(i) Availability of videoconferencing facility.

(ii) Availability of legal aid service.

(iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.

(iv) E-mail address/phone number, if any, at which litigant from outstation may communicate."

On the other hand, learned counsel for the respondent has placed reliance upon another judgment of Hon'ble Apex Court rendered in the case of Anindita Das vs. Srijit Das 2006) 9 SCC 197 wherein the Hon'ble Apex Court after having considered that the leniency to ladies shown by court in transfer matters is often misused and taken advantage of by women, has dismissed the transfer application. However, the Court directed the respondent husband to pay all travel and stay expenses of the petitioner/wife and her companion for each and every occasion when she is required to attend the court. Relevant paragraphs are reproduced hereunder:-

"1. This transfer petition has been filed by the wife on the ground that the petitioner has a small child of six years. She ahs further claimed that she has no source of income and it is difficult for her to attend the court at Delhi. She has further claimed that she is not keeping good health.

Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. On an average at least

10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women.

This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met.

Accordingly, we dismiss the transfer petition. We, however, direct that the respondent shall pay all travel and stay expenses of the petitioner and her companion for each and every occasion when she is required to attend the court at Delhi.

The respondent shall send in advance to the petitioner, money for a 2nd class AC train ticket for herself and a companion. The respondent shall also pay stay expenses of the petitioner and her companion in a 3-star hotel. The trial court shall ensure that the petitioner has been paid the travel expenses in advance and that the hotel expenses are paid to her on each and every occasion when she is required to attend the court at Delhi."

The ratio of the judgments cited by counsel for the parties is that while deciding the transfer petition, convenience of both the parties is to be seen. Mere inconvenience of wife to attend the Court is not a ground for transfer. In the present case, the applicant/wife is employed in State Bank of India and is posted at Branch Someshwar, District Almora whereas the respondent/husband, as has been informed, is working in Navy and used to come to his house at Ramnagar where there is no one in his family except his old aged mother. The applicant and the respondent both are in government service. Thus, if the case is transferred to the court at Almora, it would cause great hardship to the respondent also. As regards the ground taken by the applicant that she is having a minor child and has to travel such a long distance along with her minor child from Someshwar to Ramnagar, it has come on record that though the applicant is living separately but the fact remains that her parents is also residing in the nearby place. Thus, it is clear that there are grandparents to look after the child.

In the light of aforesaid discussion, present application u/s 24 of C.P.C. is disposed of with the following directions:-

i) Respondent shall pay all travel and lodging expenses to the applicant and her companion for each and every date when she is required to attend the court at Ramnagar. The court below shall ensure payment of travel and stay expenses to the applicant by the respondent, on production of bills/ticket by the applicant.

ii) If, due to some unavoidable circumstance, the applicant is unable to attend the court at Ramnagar on a particular date, she may move exemption application through her counsel, with information in advance to the respondent.

iii) Judge, Family Court Camp Ramnagar, District Nainital, shall make every possible endeavour to decide the Suit No.99 of 2019, under Section 13-A of Hindu Marriage Act, 1955, Yogesh Chandra Pant vs. Smt. Harsha Pant within a period of six months.

No order as to costs.