Payal Sharma vs Nikhil Sood

Jyotsna Rewal Dua, J

By means of the present petition, the petitioner (Wife) has sought transfer of Divorce Petition, titled as Nikhil Sood Versus Payal Sharma (HMP No.324 of 2019), instituted by her husband (respondent herein) under Section 13 of the Hindu Marriage Act, 1955 before the learned Family Court, Kangra at Dharamshala to the learned Family Court, Additional District Judge-II, Una, District Una.

It has been submitted in the petition that the marriage was solemnized between the parties on 2. 05.2015. From this wedlock, a son Audhvik Sood, was born on 23.05.2016. Due to strained marital relations, the petitioner alongwith her minor son started living with her widowed mother at Village and Post Office Dohgi, Tehsil Bangana, District Una. She instituted a petition under Section 125 of the Code of Criminal Procedure, claiming maintenance for her minor son from the respondent, which is statedly pending adjudication in the learned Family Court, Additional District Judge-II, Una, District Una. The respondent-husband has instituted a petition under Section 13 of the Hindu Marriage Act, being HMP No.324 of 2019, for dissolution of marriage on the grounds of cruelty and desertion, which is presently pending adjudication in the learned Family Court, Kangra at Dharamshala. Petitioner has prayed for transfer of divorce petition to the learned Family Court, Una on the ground that she is living separately with her minor son and widowed mother at Una. Circumstances in which she is placed make it very inconvenient and difficult for her to travel to Dharamshala for attending the divorce proceedings, whereas her husband is already attending the maintenance proceedings instituted by her at Family Court, Una.

Learned Senior Counsel for the respondent/ husband fairly submitted that the respondent has no objection for transfer of the divorce petition instituted by him before the learned Family Court, Kangra at Dharamshala to the learned Family Court, Additional District Judge-II, Una, District Una.

Hon'ble Apex Court in (2001) 10 SCC 41, titled Sumita Singh Versus Kumar Sanjay and another; (2004) 13 SCC 462, titled Soma Choudhury Versus Gourab Choudhaury; (2005) 12 SCC 237, titled Rajani Kishor Pardeshi Versus Kishor Babulal Pardeshi; (2008) 9 SCC 353, titled Arti Rani alias Pinki Devi and another Versus Dharmendra Kumar Gupta; and AIR 2009 SC 1374, titled Anjali Ashok Sadhwani Versus Ashok Kishinchand Sadhwani, has held that it is the wife's convenience, which must be looked at in a case where she seeks transfer of the petition.

In (2008) 3 SCC 659, titled Kulwinder Kaur alias Kulwinder Gurcharan Singh versus Kandi Friends Education Trust and others, following parameters for transfer of cases were outlined:-

"23. 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 the plaintiff or the 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 question 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 proceeding. 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."

In Krishna Veni Nagam Versus Harish Nagam, (2017) 4 SCC 150, another trend where instead of transferring the proceedings at the convenience of wife, the husband's paying travel, lodging and boarding expenses of wife and/or persons accompanying for each hearing was noticed and considered, it was observed as under:-

"14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of videoconferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country videoconferencing is now available. In any case, wherever such facility is available, it ought to be fully utilised and all the High Courts ought to issue appropriate administrative instructions to regulate the use of videoconferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of videoconferencing, proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by videoconferencing.

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."

Without going into merits/demerits of allegations and counter allegations levelled by the parties, but considering the legal position as well as the facts of the present case, where the respondent/husband has no objection in allowing the transfer petition, the instant petition is, therefore, allowed and the divorce petition filed by the respondent/husband, titled as Nikhil Sood Versus Payal Sharma (HMP No.324 of 2019), presently stated to be pending before the learned Family Court, Kangra at Dharamshala, is ordered to be transferred to the learned Family Court, Additional District Judge-II, Una, District Una.

Registry is directed to convey this order forthwith to the learned Family Court, Additional District Judge-II, Una, District Una as well as to the learned Family Court, Kangra at Dharamshala, for compliance. Learned Family Court, Kangra at Dharamshala, is directed to transfer the record pertaining to Divorce Petition (HMP No.324 of 2019) forthwith to the learned Family Court, Additional District Judge-II, Una, District Una. Parties, through their learned counsel, are directed to remain present before the learned Family Court, Additional District Judge-II, Una, District Una, on 26th December, 2020.

With these observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.