Sunanda vs Gurdeep Singh

Rajesh Bindal, J

Applicant approached this Court seeking transfer of the divorce petition filed by the respondent from the court of Additional District Judge, Matrimonial Cases, Jammu to the court of competent jurisdiction at Kathua. It is pleaded that the marriage between the parties was solemnized on 01.12.2017. As the applicant was harassed, she filed the complaint on 19.07.2018 before the Women Cell, Kathua. Respondent was summoned to appear in person there on 27.07.2018. When he appeared on 27.07.2018, he was called upon to appear on 06.08.2018. However before that date, he filed a petition for divorce at Jammu. As the petition was filed within one year of marriage, an application seeking permission in terms of Section 16 of the J&K Hindu Marriage Act, 1980 was also filed. Applicant is living at Kathua with no source of income and dependent on her parents, whereas respondent is running his own clinical laboratory with handsome income. Without any source of income and there being no one to accompany the applicant to attend the court at Jammu, it will not be possible for the applicant to defend the case. Prayer has been made to transfer of the petition to the court of competent jurisdiction at Kathua.

No response to the petition 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, Hon'ble the Supreme Court laid down certain parameters tobe 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 present case, the applicant-wife is resident of Kathua. On account of matrimonial dispute, before the divorce petition was filed by the husband at Jammu, she had filed a complaint with the Women Cell at Kathua, which is still pending. Distance between the two places is about 80 KMs. She is dependent on her parents. Considering the fact that primarily it is convenience of the wife, which is of paramount consideration, in my opinion the divorce petition filed by the respondent-husband at Jammu deserves to be transferred to the court of competent jurisdiction at Kathua.

Ordered accordingly.

The parties to the litigation to appear before the court of Principal District Judge, Kathua on 11.04.2019. As they remained un-presented before this Court, the transferee Court will summon them for the date to be fixed.

Disposed of.