Satnam Kaur v. Gurjeet Singh - (High Court of Punjab and Haryana) (12 May 2017)

Power to transfer a case must be exercised with due care, caution and circumspection

MANU/PH/0385/2017

Family

Applicant-wife, by way of instant transfer application under Section 24 of Code of Civil Procedure, 1908 (CPC), seeks transfer of a petition under Section 9 of Hindu Marriage Act, 1955 titled as Gurjeet Singh v. Satnam Kaur filed by respondent-husband from SAS Nagar (Mohali) to Moga. It is relevant to note that, Applicant-wife, along with her minor child, is living with her parents at Moga. Since, Applicant-wife is not working, she is dependent on her parents. Respondent-husband is not paying any amount of maintenance either for Applicant-wife or for minor child. Distance between Mohali and Moga is more than 150 kilometers. Other litigations between the parties, at instance of Applicant-wife, are also pending at Moga.

In view of undisputed fact situation of case, Present Court concluded that, it is just and expedient to transfer petition under Section 9 of Act from SAS Nagar (Mohali) to Moga. Undisputed facts clearly go in favour of Applicant-wife and against Respondent-husband. In circumstances of case, it will not only be inconvenient but would be very difficult for Applicant-wife to go from Moga to SAS Nagar (Mohali) to pursue litigation imposed on her by Respondent-husband under Section 9 of Act. Convenience of wife in transfer applications, like present one, arising out of a matrimonial dispute, is one of relevant consideration. Further, distance between two places, financial status of wife, her source of income, her age as well as her responsibility for bringing up minor child, are relevant factors to be considered, while deciding transfer applications like present one.

Cardinal principle for exercise of power under Section 24 of CPC is that, ends of justice demand transfer of suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider plea of transfer, Courts have to take into consideration economic soundness of either of parties, social strata of spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereto and circumstances of either of parties in eking out their livelihood and under whose protective umbrella, they are seeking their sustenance to life. Generally, it is wife's convenience which must be looked at by Courts, while deciding a transfer application.

Supreme Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh's case observed that, although discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that, power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of CPC 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 points involved in suit; issues raised by parties; reasonable apprehension in mind of litigant that, he might not get justice in Court in which suit is pending; important questions of law involved or a considerable section of public interested in 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 question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive.

In case of Dr. Subramaniam Swamy, Supreme Court held that, question of expediency would depend on facts and circumstances of each case but paramount consideration for exercise of power must be to meet ends of justice. It is true that, if more than one Court has jurisdiction under Code to try suit, Plaintiff as dominus litis has a right to choose Court and Defendant cannot demand that, suit be tried in any particular court convenient to him. Mere convenience of parties or any one of them may not be enough for exercise of power but it must also be shown that trial in chosen forum will result in denial of justice.

In view of law laid down by Supreme Court as well as different High Courts, including this Court, it is unhesitatingly held that, Applicant-wife is entitled for getting petition under Section 9 of Act, transferred from SAS Nagar (Mohali) to Moga, so as to enable her to pursue litigation without facing any undue hardship or harassment at hands of Respondent-husband. It is settled principle of law that, justice is not only to be done but it should also appear to have been done. If applicant-wife is forced to go from Moga to SAS Nagar (Mohali), it would amount to denial of justice to her. Thus, to strike a balance between parties with a view to do complete and substantial justice and proceeding on a holistic view of matter, this Court is of considered view that it, would be just and expedient to transfer petition under Section 9 of Act from SAS Nagar (Mohali) to Moga. Instant transfer application deserves to be accepted and same is allowed. Petition under Section 9 of the Act titled as Gurjeet Singh v. Satnam Kaur filed by the respondent-husband is ordered to be transferred from SAS Nagar (Mohali) to Moga.

Relevant : Dr. Subramaniam Swamy vs. Ramakrishna Hegde MANU/SC/0024/1990 Kulwinder Kaur @ Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and Ors. MANU/SC/7058/2008

Tags : APPLICATION TRANSFER GRANT