In Transfer Application No.1166 of 2021(O&M)-PUNJ HC- P&H HC allows wife’s transfer petition in matrimonial dispute after considering Top Court’s settled law that more weightage should be given to convenience of female litigants
Justice Nidhi Gupta [01-12-2022]

Read Order: Inderpreet Kaur Vs. Hardial Singh

LE Correspondent

Chandigarh, March 9, 2023: While allowing the transfer of a matrimonial dispute/case at the instance of the wife, the Punjab and Haryana  High Court has reaffirmed that the Court has to consider the woman’s family & economic condition, minor child’s custody, her physical health, earning capacity of the husband and the convenience of the wife.

The petitioner-wife had approached the Bench of Justice Nidhi Gupta for  for transfer of the petition filed by respondent-husband under Section 13(1) of the Hindu Marriage Act,1955 pending in the Court of Amritsar Family Court to a Court of competent jurisdiction at Camp Court at Mukerian, District Hoshiarpur.

The parties were married in 2010 according to Sikh rites and rituals and two children, one girl of 11 years and other, boy of 9 years, were born out of this wedlock answer in the care and custody of the respondent-husband.

The facts of the case suggested that the petitioner-wife had been living separately from the respondent-husband since 2019 and living with her parents at their mercy at Mukerian, District Hoshiarpur. The petitioner is unemployed, having no source of income and totally dependent upon her parents and the respondent-husband is not paying anything to her towards maintenance.

The respondent-husband had filed the petition under Section 13(1) of the Hindu Marriage Act, which is pending before the Principal Judge, Family Court, Amritsar.

The proceedings arising out of petitions (1) under Section 125 CrPC, Section 12 of the Protection of Women from Domestic Violence Act, 2005 and Section 25 of the Guardian and Wards Act, 1890, filed by the petitioner-wife, were pending in the Courts having competent jurisdiction at Camp Court at Mukerian, District Hoshiarpur.

The petitioner had submitted that the distance between place of residence of the petitioner-wife i.e. Mukerian, District Hoshiarpur and the place of proceedings under Section 13(1) of the Hindu Marriage Act, 1955 filed by the respondent-husband, pending before the Principal Judge, Family Court, Amritsar, is about 98 kilometers of one side. 

As per the petitioner, there is no able bodied person in the family of the petitioner, who can accompany her to the Court of proceedings at Amritsar. The matter was referred to the Mediation & Conciliation Centre of this Court and the parties were directed to appear there for exploring the possibility of some amicable settlement. But as per report of the Mediation & Conciliation Centre because of absence of the parties, the mediation could not be held.

It was on these grounds that the petitioner prayed for transfer of the case.

The Bench referred to the judgments of the Top Court in Sumita Singh vs Kumar Sanjay and Rajani Kishor Pardeshivs Kishor Babulal Pardeshi, 2005(12) SCC 237, wherein  it was 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.

“Accordingly, 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”, the Bench held.

Thus, allowing the petition, the Bench ordered that the petition filed by respondent husband under Section 13(1) of Hindu Marriage Act,1955, pending in the Court of Principal Judge, Family Court, Amritsar should be transferred to a Court of competent jurisdiction at Hoshiarpur.