Tara Devi vs Susheel Kumar

Vivek Singh Thakur, J.

1.Petitioner herein is wife of respondent. They have solemnized marriage on 23rd April, 2015 at Shimla according to Hindu rites and ceremonies after

falling in love with each other. On 6th January, 2017, petitionerÂwife had approached Women Police Station, Shimla for lodging a complaint against

her husband and inÂlaws under Domestic 2 Violence Act. Her statement was recorded by the police and was referred to the Protection Officer,

Totu, Shimla, for further action whereupon, on the basis of report, dated 15th February, 2017 filed by Protection Officer in an application filed under

Section 12 of Domestic Violence Act in April, 2017, Learned Chief Judicial Magistrate, Shimla, has taken cognizance of the complaint filed on behalf

of the petitionerÂ​ wife against the husband and his relatives including parents.

RespondentÂhusband, after filing reply to the said complaint, had preferred a petition before District Judge, Bilaspur, under Section 13 of the Hindu

Marriage Act for dissolution of marriage by passing a decree of divorce. The said petition is now pending before learned Additional District Judge,

Ghumarwin, District Bilaspur (Camp at Bilaspur). On receiving summon (Annexure PÂ4) in the aforesaid divorce petition, petitionerÂwife has

approached this Court for transfer of the said petition to Shimla.

This petition has been opposed by the respondentÂhusband on the ground that petitionerÂwife is misusing the provisions of Section 23 (2) and

Section 24 (1) (a) (b) (ii) of Code of Civil Procedure be taking advantage of her womanhood. It has been stated in the reply that petition, sought to be

transferred, preferred by the respondentÂhusband has been filed in the competent Court having the jurisdiction to hear and decide the same and no

ground for transfer of the same is made out.

Learned counsel for the respondentÂhusband also submits that in case the matter is transferred to District Court, Shimla, there is a threat to the life

of the respondent husband as on an earlier occasion, during the hearing of the case under Domestic Violence Act at Shimla, he was thrashed by the

petitionerÂwife, regarding which verbal complaint had been made to the District Judge. Learned counsel for the petitionerÂwife has refuted the

charges by stating that, in fact, both of them had quarreled with each other and it was the petitionerÂwife who was the sufferer and, therefore,

petitionerÂ​wife had also lodged a complaint with regard to the said incident with the police.

Section 19 of the Hindu Marriage Act provides jurisdiction and procedure for filing the petitions under this Act, which reads as under: “19. Court

to which petition shall be presented. Â Every petition under this Act shall be presented to the district court within the local limits of whose ordinary

original civil jurisdiction Â​

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petitioner, in a case where the respondent is, at that time, residing outside the

territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally

have heard of him if he were alive.â€​

In present case, it is undisputed that marriage was solemnized at Shimla and petitionerÂwife, who is respondent in divorce petition, at the time of

presentation of petition, was residing at Shimla. It is also undisputed that at the time of marriage also, petitionerÂwife was in service at Shimla and

occasionally visiting her matrimonial house in Village Balgard, Tehsil Jhandutta, District Bilaspur. Therefore, it cannot be said that parties to marriage

have last resided together in the said village. In fact, parties, after marriage, ordinarily were residing within local limits of ordinary original civil

jurisdiction of District Judge, Shimla. SubÂsections (iiia) and (iv) of Section 19 of the Hindu Marriage Act are not applicable in the present case. So, in

present case, divorce petition should have been filed before the District Judge, Shimla.

Even otherwise, petitionerÂwife has lodged a complaint under Domestic Violence Act against her inÂlaws in the Courts at Shimla and divorce

petition, sought to be transferred, has been preferred thereafter.

PetitionerÂwife is serving as an outsourced worker through contractor in RTO Office, Shimla on contract basis against a meagre salary.

Respondent husband is serving as a District Manager on contract basis in Common Service Center Project, Bilaspur. He is slightly on better footings

than the petitionerÂ​wife.

It is also settled law of the land that in proceedings, which are outcome of matrimonial discord, convenience of wife has to be looked at and not the

inconvenience of husband. {See : Sumita Singh versus Kumar Sanjay and another, (2001) 10 SCC 41; Soma Choudhury versus Gourab Choudhaury,

(2004) 13 SCC 462; Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi, (2005) 12 SCC 237; Kulwinder Kaur alias Kulwinder Gurcharan Singh

versus Kandi Friends Education Trust and others, (2008) 3 SCC 659; Arti Rani alias Pinki Devi and another versus Dharmendra Kumar Gupta, (2008)

9 SCC 353; Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani AIR 2009 SC 1374; and Urvashi Rana versus Himanshu Nayyar, Latest

HLJ 2016(HP) 925.}

So far as contention of the respondentÂhusband with regard to threat to his life at Shimla is concerned, he is at liberty to take police help by

making an appropriate application to this effect, as has been held by the apex Court in case titled Soma Choudhury versus Gourab Choudhaury,

reported in (2004) 13 Supreme Court Cases 462.

In view of above discussion, petition is allowed and accordingly, HMA No. 4Â3 of 2017, titled as Susheel Kumar versus Tara Devi, preferred by

the respondentÂhusband under Section 13 of the Hindu Marriage Act, which is pending adjudication before the learned Additional District Judge,

Ghumarwin, District Bilaspur (Camp at Bilaspur), is ordered to be transferred to the Court of learned District Judge, Shimla.

Learned Additional District Judge, Ghumarwin, District Bilaspur (Camp at Bilaspur), is directed to transmit the record of the said case to the

learned District Judge, Shimla, with immediate effect.

Parties are directed to appear before the learned District Judge, Shimla, either personally or through their counsel, on 31st May, 2018, who shall

proceed with the matter in accordance with law.

The petition is disposed of in the above terms alongwith all pending applications, if any. No order as to costs.

15.Registry to convey the order forthwith to the learned Additional District Judge, Ghumarwin, District Bilaspur (Camp at Bilaspur) as well as learned

District Judge, Shimla.