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2011 Supreme(P&H) 303
2011 (6) RCR(Civ) 117
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
JITENDRA CHAUHAN, J.
Sunita - Applicant
Versus
Joginder - Respondent
TA No.277 of 2010
Decided on: 27.01.2011
Mr. Parmod Parmar, Advocate for the applicant.
Mr. Tejveer Singh, Advocate, for the respondent.
Headnote:
Transfer - Jurisdiction - The court allowed the transfer application under Section 24 of the Code of Civil Procedure, transferring the petition under Section 25 of the Guardian and Wards Act from Hisar to Jhajjar based on the convenience of the wife and the territorial jurisdiction of the District Courts at Jhajjar.
Fact of the Case:
The applicant sought transfer of a petition filed by the respondent under Section 25 of the Guardian and Wards Act from Hisar to Jhajjar, citing inconvenience and the territorial jurisdiction of the District Courts at Jhajjar.
Finding of the Court:
The court found that the convenience of the wife and the territorial jurisdiction favored the transfer of the petition to Jhajjar, and accordingly allowed the transfer application.
Issues: The main issue was whether the petition under Section 25 of the Guardian and Wards Act should be transferred from Hisar to Jhajjar based on the convenience of the wife and the territorial jurisdiction of the District Courts.
Ratio Decidendi: The court relied on the provisions of Section 9 of the Guardian and Wards Act, and also considered the convenience of the wife as highlighted in the Supreme Court case of Neelam Kanwar vs Devinder Singh Kanwar, 2001(1) M.L.J. 509 (SC).
Final Decision: The court allowed the transfer application, withdrew the petition from the Court of learned District Judge (Family Court), Hisar, and transferred it to the Court of competent jurisdiction at Jhajjar, directing the trial Court at Hisar to send the file to the learned District Judge, Jhajjar within three weeks.
JITENDRA CHAUHAN, J. (Oral) - The present application has been filed under Section 24 of the Code of Civil Procedure, for transfer of the petition titled as ‘Joginder Vs. Sunita’, filed by the respondent under Section 25 of the Hindu Minority and Guardianship Act, 1956 (for short `the Act'), in fact it should have been ‘The Gurdian and Wards Act, 1890’, from the Court of learned District Judge (Family Courts), Hisar, to the Court of competent jurisdiction at Jhajjar.
2. Learned counsel for the applicant contends that the applicant is a resident of Jhajjar and the respondent has filed the petition under Section 25 of the Act solely with a purpose to harass the applicant.
3. Learned counsel for the respondent has vehemently opposed the prayer.
4. I have heard the learned counsel for the parties.
5. The applicant is raising her five years’ old child. The father of the applicant in an old person. He would not be able to accompany the applicant to Hisar at the time of hearing. She is a resident of Jhajjar which is at a distance of 130 kms. from Hisar. It would be difficult for the applicant to move from her Village Sariya, District Jhajjar, where she is residing with her minor son. In his petition under Section 25 of the Guardian and Wards Act (wrongly mentioned as the Hindu Minority and Guardianship Act), the husband has admitted that minor Hardik alias Hunny is in custody of the wife at Village Saria, Tehsil Beri, District Jhajjar. She is improving her qualification as well.
As per Section 9 of the Guardian and Wards Act, an application with respect to the guardian of the person of the minor, shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Prima facie, the District Courts at Jhajjar have the jurisdiction to entertain and try the application under Section 25 of the Act.
6. Hon'ble the Supreme Court in Neelam Kanwar vs Devinder Singh Kanwar, 2001(1) M.L.J. 509 (SC), has observed as under:-
“We are mindful of the fact that the petitioner is a lady and first respondent is a male, and, therefore, (for) convenience of wife, a transfer to the place where the lady is residing, would be preferred by this Court unless, it is shown that there are special reason not to do so. No special reason is shown.”
7. Considering the fact that the applicant along with his minor son, is residing at Jhajjar, prima facie the District Courts, Jhajjar, have the territorial jurisdiction in the matter and primarily, the convenience of the wife is to be seen, therefore, in my opinion, the balance of convenience is on the side of the wife, the applicant. Accordingly, the petition filed by the respondent titled as ‘Joginder Vs. Sunita’ under Section 25 of the Act, pending in the Court of learned District Judge (Family Court), Hisar, deserves to be transferred to Jhajjar.
8. In view of the above, the instant transfer application is allowed, petition under Section 25 of the Act titled as ‘Joginder Vs. Sunita’ is withdrawn from the Court of learned District Judge (Family Court), Hisar, and is transferred to the Court of competent jurisdiction at Jhajjar. File of the petition shall be sent by the trial Court at Hisar to learned District Judge, Jhajjar, within three weeks, who will either himself dispose it of or entrust it to any Court of competent jurisdiction.
9. The parties shall appear before the Court of District Judge, Jhajjar on 28.02.2011 at 10.00 a.m.
