Vishali @ Rupali vs Gourav Kumar And Others

Arvind Singh Sangwan, J

Prayer in this petition is for transfer of the Civil Suit No.722 of 2020 titled as "Gourav Kumar vs Vishali @ Rupali and others", pending in the Civil Judge (Jr. Division), Fazilka to the competent Court of jurisdiction at Moga.

Vide order dated 10.12.2020, the following order was passed:-

“Learned counsel states that the marraige between the petitioner and respondent No. 1 was solemnized on 30.04.2015 and out of this wedlock, one male child Rehmat was born on 13.07.2016 who is presently staying with respondent No. 1. The parties have been residing separately since 27.12.2019 A petition under Section 125 Cr.P.C has been filed by the petitioner. Further a complaint under Section 406/498-A IPC is also pending. Now in order to harass the petitioner, respondent No. 1 filed a case under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Further a petition has been filed by respondent No. 1 before the learned Civil Judge (Jr. Divn.) Fazilka for grant of permanent injunction restraining the respondents/defendants from getting the custody of minor child Rehmat. Learned counsel submits that petitioner is ready for settling the dispute amicably and till date, no mediation has taken place between the parties.

Notice of motion for 03.02.2021.”

Counsel for the petitioner has argued that on account of a matrimonial discord, the petitioner has filed a petition under Section 125 Cr.P.C. and a complaint under Sections 406/498-A IPC at Moga.

Counsel for the petitioner has further submitted that the respondent husband has filed the Civil Suit No.722 of 2020, as a counter-blast, before the Civil Judge (Jr. Division), Fazilka.

Counsel for the petitioner has also argued that on account of a Civil Suit No.722 of 2020 filed by the respondent/husband, the petitioner is facing great difficulty in prosecuting the said case as there is a distance of about 143 Kms from Moga to Fazilka.

Counsel for the petitioner has further contended that the petitioner is having a minor child, who is living in her care and custody and she is facing difficulty to defend the case as she has to travel from Moga to Fazilka.

Counsel for the petitioner has relied upon the judgments

“Sumita Singh vs Kumar Sanjay”, 2002 SC 3580 and “Rajani Kishor Pardeshi vs Kishor Babulal Pardeshi”, 2005(12) SCC 237, wherein the Hon’ble Supreme Court has observed that while deciding the transfer application, the Courts are required to give more weightage and consideration to the convenience of the female litigants and transfer of legal proceedings from one Court to another should ordinarily be allowed, taking into consideration their convenience and the Courts should desist from putting female litigants under undue hardships.”

Counsel for the petitioner has also relied upon the judgment “N.C.V. Aishwarya vs A.S. Saravana Karthik Sha,” 2022

Live Law (SC) 627, wherein the Hon’ble Supreme Court has observed as under:-

The cardinal principle for exercise of power under section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer.

Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.”

It is well settled that while considering the transfer of a matrimonial dispute/case at the instance of the wife, the Court is to consider the family condition of the wife, the custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important the convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place to and fro from her place of residence as well as bearing of the litigation charges and travelling expenses.

Counsel for the respondent has, however, not disputed the factual position but opposed the submissions made by counsel for the petitioner.

After hearing the counsel for the parties, considering the fact that the petitioner/wife will have to bear the litigation expenses and transportation expenses and in view of the judgments i.e. Sumita Singh’s case (supra), Rajani Kishor Pardeshi’s case (supra) and N.C.V. Aishwarya’s case (supra) passed by the Hon’ble Supreme Court, this Court deem it appropriate to allow the present petition, subject to the following conditions:-

The Civil Suit No.722 of 2020 titled as "Gourav Kumar vs Vishali @ Rupali and others", pending before the Civil Judge (Jr. Division), Fazilka will be transferred to the competent Court of jurisdiction at Moga.

The District Judge, Moga, will assign the said Civil Suit No.722 of 2020 to the competent Court of jurisdiction.

The Civil Judge (Jr. Division), Fazilka is directed to transfer all the record pertaining to the aforesaid case to District Judge, Moga.

The parties are directed to appear before the trial Court, Moga, within a period of 01 month from today.

Disposed of.