Muskan Sharma vs Rohit Kumar

Rajesh Bindal, J

When the case was taken up on second call, none appeared for the parties. For the last six dates of hearing, none appeared for the petitioner.

The petitioner is seeking transfer of the application filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1980 (for short „the Act‟) for restitution of conjugal rights, which is pending in the court of Additional District Judge, Kathua. Application for transfer has been filed by the applicant claiming that she is residing at Jammu. She has two children, aged four years and two years, respectively to maintain with no source of income. She has an old mother to be taken care of, who is suffering from Geriatrics related ailment. She is presently residing at a place which is around 80 KMs from Kathua, where the application under Section 9 of the Act has been filed.

The issue regarding transfer of case from one Court to another has been discussed by Courts in numerous judgments. In Kulwinder Kaur @ Kulwinder Gurcharan Singh vs Kandi Friends Education Trust and others, 2008 (3) SCC 659, the Hon'ble Supreme Court laid down certain parameters to be considered for the purpose, while opining that the same cannot be treated as exhaustive but illustrative in nature. The relevant Para- 14 thereof is extracted hereunder:

"Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any castiron 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."

The issue regarding transfer of matrimonial proceedings almost in similar circumstances came up for consideration before this Court in a number of cases earlier. It has been the consistent view that primarily convenience of the wife is to be given weightage for ordering transfer of proceedings at or near the place where she is residing.

This Court had earlier accepted the plea of wife for transfer of the case close to the place of her residence considering her difficulties. Reference can be made to Judgment of this Court in Jatinder Kour vs. Sharan Pal Singh, 2016 (1) JKJ 670 [HC] and Anju Bala vs. Narinder Kumar Bhagat, 2018 SCC Online J&K 533.

Recently, Hon‟ble Supreme Court in Anupama Patil vs. Nataraj Veeranagouda Patil, 2018 (15) SCC 354 directed transfer of the Matrimonial case on request of the wife close to the place of her residence.

Relevant para from the judgment is extracted below:

"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."

In the case in hand, the petitioner has stated that she has two children aged four and two years respectively and she has to maintain them with no source of income. She has an old mother, who is suffering from ailment and has to be taken care of by the petitioner. The place where the application under Section 9 of the Act has been filed is about 80 KMs from her residence. Hence, keeping in view of the aforesaid facts as stated in the application, to which no objections have been filed by the respondent despite several opportunities given, the present application deserves to be allowed.

Ordered accordingly.

The application filed by the respondent under Section 9 of the Act, which is pending in the court of Additional District Judge, Kathua is transferred to the court of Additional District Judge, Matrimonial Cases, Jammu.

As none has represented the parties before the court today, the transferee court shall issue notice to the parties for their appearance on 11.04.2019.

Disposed of.