TA No.151 of 2012

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT

CHANDIGARH

TA No.151 of 2012

Date of Decision.21.11.2012

Harpreet Kaur w/o Amarjeet Singh Gansi, d/o Jaswinder Singh

.....Applicant

Versus

Amarjeet Singh Gansi s/o Jaspal Singh

.....Respondent

Present:

Ms. Jyoti Sareen, Advocate

for the applicant.

Mr. S.S. Swaich, Advocate

for the respondent.

CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the

judgment ? No

2.

To be referred to the Reporters or not ? No

3. Whether the judgment should be reported in the Digest? No

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K. KANNAN J.(ORAL)

1.

The petition for transfer is sought by the wife on the ground

that the matrimonial proceedings have been initiated by the husband at

the Court at Amloh in Fatehgarh Sahib, District and she has not been

provided for maintenance and there is actually a petition for

maintenance pending in the Court at Dasuya, District Hoshiarpur. There

is also a criminal complaint, which is registered against the husband for

offences under Section 498-A IPC and a case for custody of the child is

also pending. The distance between the Court of institution and the

place where the wife resides is more than 150 kms and it is very difficult

for her to undertake the expense and inconvenience of having to travel

long distance with her child.

2.

Learned counsel appearing for the respondent says that

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there is also a petition pending before the Court at Amloh for restitution

of conjugal rights. As a matter of fact, the applicant had moved this

Court for transfer in T.A. No.409 of 2010 but it was allowed to be

dismissed for default of non-prosecution after the mediation between

the parties failed. The dismissal was made on 28.04.2011 and according

to him, when one attempt by the petitioner to have the case of

restitution of conjugal rights transferred failed already, there is no

justification for her to apply for transfer of application for divorce.

3.

The reasons stated for transfer are good enough and I will

not fetter myself for consideration of transfer for only reason that the

order passed already by this Court dismissing the petition for transfer

has remained final.

The disposal of an application for transfer

otherwise than on merits cannot constitute res judicata. If the ground

for transfer is made and it is found exigent to transfer matrimonial

proceedings of divorce initiated by the husband, that itself ought to be a

reason for transfer of the other application, which is pending before the

Court for restitution of conjugal rights, it is immaterial that there is no

petition filed before this Court, I will exercise the power under Section

24 CPC as well as the power under Article 227 of the Constitution to

order the transfer of the case relating to restitution of conjugal rights

also to the Court at Dasuya for disposal in accordance with law.

4.

The transfer application is allowed. The matrimonial

proceedings for divorce between the parties as referred to in the

petition is ordered to be withdrawn from the Court at Amloh, District

Fatehgarh Sahib and transferred to the Court at Dasuya. Another

petition, which is said to be pending between the same parties in the

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very same Court titled “Amarjit Singh Gansi Vs. Harpreet Kaur” before

the Additional Civil Judge (Senior Division), Amloh, District Fatehgarh

Sahib is also directed to be transferred along with the petition for

divorce. Both the petition for divorce and application for restitution of

conjugal rights will be disposed of altogether. The parties shall appear

before the Court at Dasuya on 28.12.2012.

(K. KANNAN)

JUDGE

November 21, 2012

Pankaj*