P&H HC allows transfer of petition for restitution of conjugal rights, considering wife’s convenience and fact that husband seemingly consented to such transfer application by not contesting same

Read Order: Palak Vohra v. Taik Chand @ Rajan 

Monika Rahar

Chandigarh, February 23, 2022: The Punjab and Haryana High Court has allowed the transfer petition of the applicant-wife, directing the transfer of the husband’s petition under Section 9 of the Hindu Marriage Act, from the Family Court Kharar, District SAS Nagar to the Court of competent jurisdiction at District Bathinda, on the ground that the case initiated by the wife was pending in concerned Court at Bathinda and thus it would be proper, appropriate and in the interest of justice if all cases were tried and decided at one place. 

While allowing such transfer, the Bench of Justice Arun Monga also considered the fact that none put in an appearance or filed power of attorney on behalf of the respondent-husband and this was deemed by the Court to be husband’s consent to the transfer application of the petitioner wife.

In this ongoing case, initially the petitioner- wife filed an application under Section 12 of Protection of Women from Domestic Violence Act, 2005 and a petition under Section 13 of Hindu Marriage Act, 1955 against the respondent-husband, before the concerned court at Bathinda. The respondent-husband, on the other hand, filed an application Section 9 for restitution of conjugal rights under the Hindu Marriage Act, pending in the Family Court Kharar, District SAS Nagar. 

Thus, the wife approached the High Court with a petition seeking the transfer of petition filed by the respondent-husband from the Family Court Kharar, District SAS Nagar to the Court of competent jurisdiction at District Bathinda.

The counsel for the applicant submitted that application under Section 12 of Protection of Women from Domestic Violence Act, 2005 and petition under Section 13 of Hindu Marriage Act, 1955 filed by the petitioner against the respondent-husband were already pending at Bathinda. He further contended that the applicant/petitioner was residing in her parental home at Bathinda and she has no source of income. It was also highlighted that the distance from Bathinda to Kharar was more thus making it difficult for her to go to Kharar on each date of hearing.

The fact that despite service, none put in an appearance or filed power of attorney on behalf of the respondent, was deemed by the Court to be his (respondent’s) consent to the transfer application of the petitioner wife.

Further, the Court noted that all the cases pending between the parties were the aftermath of matrimonial discord and keeping in view the contentions in the application and the conceded position that application under Section 12 of Protection of Women from Domestic Violence Act, 2005 and petition under Section 13 of Hindu Marriage Act, 1955 were already pending at Bathinda, the Court found it proper, appropriate and in the interest of justice to direct the trial of all cases at one place. 

The counsel for the applicant relied upon the judgment of the Apex Court in Sumita Singh Vs. Kumar Sanjay and another, AIR 2002 SC 396, wherein it was held that in the transfer of matrimonial proceedings initiated by the husband against wife, the convenience of the wife ought to be looked into. 

In the premise, without going to the allegations/counter-allegations, the petition in question pending before the Family Court, Kharar, District SAS Nagar was ordered to be withdrawn from that Court and was transferred to the District Judge, Bathinda for its disposal in accordance with law by the Court concerned.

Thus, the transfer application was allowed.