Neelam vs Anil Kumar Bhambri

V.K. Bali, J.—Petitioner, physically and financially handicapped who has also to rear up a child of tender years seeks transfer of a petition filed by her husband Anil Kumar u/s 9 of the Hindu Marriage Act for the restitution of conjugal rights from the Court of Additional Senior Sub Judge, Pategarh Sahib to any of the Court! competent to try the matter at Hoshiarpur.

The marriage between the parties was lolemoised in the year 1985 and ai pleaded, the petitioner was treated most shabbily and for the first time turned out from the house in June 1988. She stayed with her father tilt June 1989. After living with her husband for some time in the year 1989, she had to come back to her father at Hoshiarpur where she remained upto June 1991. No effort at any given time was ever made by the respondent to change bis earlier treatment and rehabilitate her. In May, 1991, the petitioner even implored the Punjab Istri Sabha to intervene in the matter go that she could be restored to her matrimonial home to live there in peace. The efforts of Punjab Istri Sabha succeeded although temporarily, inasmuch as, she lived with her husband for a small period of one month, the respondent thereafter took to his old ways thus, constraining the petitioner to once again seek shelter under the roof of her father. Some time prior to the filing of petition by the husband u/s 9 of the Hindu Marriage Act i.e. 9-6-1992, the petitioner applied for maintenance under the provisions of Section 125 of the Code of Criminal Procedure. After the respondent was served in the aforesaid case, he applied for restitution of conjugal rights. The petitioner had even filed a complaint against him Under Sections 406/498 I.P.C. Both the aforesaid cases i.a. the one filed u/s 125 of the Code of Criminal Procedure and the other filed under Sections 406/498 IPC are pending at Hoshiarpur whereas the respondent filed petition for restitution of conjugal rights at Fatehgarh Sahib which is stated to be 200 Kilometres away from Hoshiarpur.

Notice of thin transfer application was given to the respondent on October 22, 1992. The respondent was served and on request made by the counsel engaged by him, the case adjourned to November 11, 1992. No reply was filed on the adjourned date and on request made by the counsel for the respondent, once again the case was adjourned to November 25. 1992 but no reply was filed. On November 25, 1992 the case was once again adjourned to November 26, 1992 i.e. today. Even today reply has not been filed and the prayer made by the counsel for tha respondent for further adjourning the case is found to be wholly unjustified and, therefore, the same is rejected.

The unrebutted facts, narration of which has been given above, would manifest that the respondent made no efforts whatsoever to rehabilitate the wife and did not in fact bother for her till such time she filed a petition u/s 125 of the Code of Criminal Procedure wherein the sought some financial help with a view to maintain herself and her child. In the fads and circumstances of the case, it appears that the respondent-hushand filed petition for restitution of conjugal rights limply with a view 10 frustrate the claim of the petitioner for maintenance. Be that as it may, two caies instituted by the petitioner are pending at Hoihiarpur where she ii living with her father ami minor Child. Further, Faiehgarh Sahib where petition u/s 2 of tha Hindu Marringe Act is pending is located at a didtance of 200 Kilometres from Hoshiarpur. The very fact that she has filed a petition u/s 125 of the Code of Criminal Procedure ihowx that she is unable to maintain herself and her child on account of lack of funds available either with her or her faiher. Even though convenience of a party may not be a sufficient ground for the transfer of a case but when-it might appear to the Court that non-transfer of a case might cause injustice and the party seeking transfer may not be able to defend and hil/her case which may turn against him/ her on account of default alone, it would be just and proper to transfer (he case at a place where the party seeking transfer can have meaningful conteit and hope for justice.

The facts narrated above, in my considered view, require that the case filed by the husband be transferred at Hoshiarpur so that the petitioner who is in financial strain and is physically frail may not be able to defend herself at Fatehgarh Sahib.

6, For the reasons recorded above, this petition is allowed. Caase titled "Anil Kumar v. Neelma" pending before the Additional Senior Sub Judge, Fatehgarh Sahib cxercising the powers of District Judge is withdrawn from the laid Court and is transferred to the District Judge Hoshiarpur who may assign the same to any of the Subordinate Judge; exercising the powers of District Judge for final disposal of the same. Parties to bear their own costs. Parties to appear before District Judge, Hoshiarpur on 15-12-1992.