Sandeep Sharma, J. (Oral):— By way of instant petition filed under S.24 of the Code of Civil Procedure read with Art. 227 of the Constitution of India, prayer has been made to transfer complaint No. 39-3 of 2014 titled Anita v. Sh. Balbir Singh ., filed under the provisions of the Protection of Women from Domestic Violence Act, 2005, from the court of learned Additional Chief Judicial Magistrate, Court No. 1, Shimla to any competent court of law at Nadaun, Hamirpur, Himachal Pradesh.
2. Facts, unfolding from the petition, are that marriage of petitioner and respondent was solemnized in the year 2001 as per Hindu rites and customs at Hamirpur and out of marriage, two children namely Kumari Simran and Master Sumit are stated to have been born to the parties. It is alleged that 3-4 months after the marriage, respondent started maltreating the petitioner. Petitioner is stated to be residing at Hamirpur in her paternal house after December, 2014, when she was forced to move out of the matrimonial house at Shimla. Further, vide order dated 6.4.2016, an interim maintenance of Rs. 2,000/- to the petitioner and Rs. 1500/- each to the minor children has been granted by the court of learned Additional Chief Judicial Magistrate, court No. 1.
3. Subject matter of the present controversy is a complaint having been filed by the petitioner under the provisions of the Protection of Women from Domestic Violence Act, 2005 in the court of learned Additional Chief Judicial Magistrate, Court No. 1, Shimla, i.e. Complaint No. 39-3 of 2014, against the respondent and which was lastly listed on 19.6.2017.
4. Learned proxy counsel representing the petitioner, in support of his aforesaid contentions also placed reliance upon the judgment rendered by this Court in Urvashi Rana Petitioner v. Himanshu Nayyar, (CMPMO No. 177 of 2016) decided on 15.7.2016, reported in Latest HLJ 2016 (HP) 925, to demonstrate that convenience of wife is required to be considered over and above the inconvenience of the husband.
5. Aforesaid judgment passed by this Court is based upon law laid down by the Hon'ble Apex Court in various cases, wherein it has observed that wife's convenience is required to be considered over and above the inconvenience of the husband.
6. In Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi ., (2005) 12 SCC 237, Hon'ble Apex Court has held that convenience of wife is of prime consideration.
7. Similarly, Hon'ble Apex Court in Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust, (2008) 3 SCC 659, has laid down parameters for transferring the cases i.e. balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; “interest of justice” demanding for transfer of suit, appeal or other proceedings, etc. While laying aforesaid broad parameters, Hon'ble Apex Court has further held that these are illustrative in nature and by no means can be taken to be exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a ‘fair trial’, in the Court from which he/she seeks to transfer a case, it is not only the power, but the duty of the Court to make such order. The Hon'ble Apex Court has held as under:
“23. Reading Sections 24 and 25 of the Code 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 the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the 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 the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a “fair trial” in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.”
8. Similarly, Hon'ble Apex Court in Arti Rani alias Pinki Devi v. Dharmendra Kumar Gupta, (2008) 9 SCC 353, while dealing with a petition preferred by wife for transfer of proceedings on the ground that she was having minor child and it was difficult for her to attend the Court at Palamu, Daltonganj, which was in the State of Jharkhand and at a quite distance from Patna, where she was now residing, with her child, ordered transfer of proceedings taking into consideration convenience of wife.
9. In the case at hand, facts, as have been discussed above, which have not been refuted, clearly reveal that at present, petitioner resides at Hamirpur, in her paternal house. Similarly, there appears to be no dispute with regard to petitioner having two minor children and it can be presumed that it is difficult for the petitioner to attend each and every hearing at Shimla, leaving her minor children at Hamirpur.
10. During proceedings of the case, attention of this Court was invited to the judgment passed by Hon'ble Apex Court in Krishna Veni Nagam v. Harish Nagam ., (2017) 4 SCC 150, wherein Hon'ble Apex Court has held as under:
“We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed. In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.
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17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.
18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:—
i) Availability of video conferencing facility.
ii) Availability of legal aid service.
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.
iv) E-mail address/phone number, if any, at which litigant from out station may communicate.”
11. Recently, the Hon'ble Apex Court in Transfer Petition (Civil) No. 1278 of 2016, titled Santhini v. Vijaya Venketesh ., has overruled the judgment passed in Krishna Veni Nagam v. Harish Nagam ., (2017) 4 SCC 150 (Supra). Relevant paras of aforesaid latest judgment are reproduced below:
“51. In this context, we may refer to the fundamental principle of necessity of doing justice and trial in camera. The nine-Judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra 46, after enunciating the universally accepted proposition in favour of open trials, expressed:—
“While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the Judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? If the primary function of the court is to do justice in causes brought before it, then on principle, it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court. If the principle that all trials before courts must be held in public was treated as inflexible and universal and it is held that it admits of no exceptions whatever, cases may arise where by following the principle, justice itself may be defeated. That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. It is hardly necessary to emphasise that this inherent power must be exercised with great caution and it is only if the court is satisfied beyond a doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can pass an order to hold the trial in camera; but to deny the existence of such inherent power to the court would be to ignore the primary object of adjudication itself. The principle underlying the insistence on hearing causes in open court is to protect and assist fair, impartial and objective administration of justice; but if the requirement of justice itself sometimes dictates the necessity of trying the case in camera, it cannot be said that the said requirement should be sacrificed because of the principle that every trial must be held in open court.” 52. The principle of exception that the larger Bench enunciated is founded on the centripodal necessity of doing justice to the cause and not to defeat it. In matrimonial disputes that are covered under Section 7 of the 1984 Act where the Family Court exercises its jurisdiction, there is a statutory protection to both the parties and conferment of power on the court with a duty to persuade the parties to reconcile. If the proceedings are directed to be conducted through videoconferencing, the command of the Section as well as the spirit of the 1984 Act will be in peril and further the cause of justice would be defeated.
53. A cogent reflection is also needed as regards the perception when both the parties concur to have the proceedings to be held through videoconferencing. In this context, the thought and the perception are to be viewed through the lens of the textual context, legislative intent and schematic canvas. The principle may had to be tested on the bedrock that courts must have progressive outlook and broader interpretation with the existing employed language in the statute so as to expand the horizon and the connotative expanse and not adopt a pedantic approach.
54. We have already discussed at length with regard to the complexity and the sensitive nature of the controversies. The statement of law made in Krishna Veni Nagam (supra) that if either of the parties gives consent, the case can be transferred, is absolutely unacceptable. However, an exception can be carved out to the same. We may repeat at the cost of repetition that though the principle does not flow from statutory silence, yet as we find from the scheme of the Act, the Family Court has been given ample power to modulate its procedure. The Evidence Act is not strictly applicable. Affidavits of formal witnesses are acceptable. It will be permissible for the other party to cross-examine the deponent. We are absolutely conscious that the enactment gives emphasis on speedy settlement. As has been held in Bhuwan Mohan Singh (supra), the concept of speedy settlement does not allow room for lingering the proceedings. A genuine endeavour has to be made by the Family Court Judge, but in the name of efforts to bring in a settlement or to arrive at a solution of the lis, the Family Court should not be chained by the tentacles by either parties. Perhaps, one of the parties may be interested in procrastinating the litigation. Therefore, we are disposed to think that once a settlement fails and if both the parties give consent that a witness can be examined in video conferencing, that can be allowed. That apart, when they give consent that it is necessary in a specific factual matrix having regard to the convenience of the parties, the Family Court may allow the prayer for videoconferencing. That much of discretion, we are inclined to think can be conferred on the Family Court. Such a limited discretion will not run counter to the legislative intention that permeates the 1984 Act. However, we would like to add a safeguard. A joint application should be filed before the Family Court Judge, who shall take a decision. However, we make it clear that in a transfer petition, no direction can be issued for video conferencing. We reiterate that the discretion has to rest with the Family Court to be exercised after the court arrives at a definite conclusion that the settlement is not possible and both parties file a joint application or each party filing his/her consent memorandum seeking hearing by videoconferencing.
55. Be it noted, sometimes, transfer petitions are filed seeking transfer of cases instituted under the Protection of Women from Domestic Violence Act, 2005 and cases registered under the IPC. As the cases under the said Act and the IPC have not been adverted to in Krishna Veni Nagam (supra) or in the order of reference in these cases, we do intend to advert to the same.
56. In view of the aforesaid analysis, we sum up our conclusion as follows:—
(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent”
12. Accordingly, perusal of aforesaid judgment clearly suggests that in a transfer petition, video conferencing cannot be directed and hearing of matrimonial disputes is required to be conducted in camera. In the aforesaid judgment, Hon'ble Apex Court has further held that after the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer, but in transfer petition, video conferencing can not be directed.
13. This Court, after having taking note of the aforesaid grounds raised in the instant petition coupled with the law on the point, as has been laid down by the Hon'ble Apex Court as well as this Court, sees no impediment in transferring the complaint filed under the provisions of the Protection of Women from Domestic Violence Act, 2005 from Shimla to Hamirpur. Accordingly, this court deems it fit to transfer complaint No. 39-3 of 2014 titled Anita v. Sh. Balbir Singh ., filed under the provisions of the Protection of Women from Domestic Violence Act, 2005, from the court of learned Additional Chief Judicial Magistrate, Court No. 1, Shimla to Judicial Magistrate 1 Class, Nadaun, Hamirpur, Himachal Pradesh. Ordered accordingly. However, observations made herein above shall have no bearing on the merits of the complaint in question, which shall be decided on its own merit, in accordance with law.
14. Learned counsel for parties undertake to cause presence of their clients before the learned Judicial Magistrate 1 Class, Nadaun, Hamirpur on 11.1.2019 Learned Additional Chief Judicial Magistrate, Court No. 1, Shimla shall transfer the record of the aforesaid complaint to the Court of learned Judicial Magistrate 1 Class, Nadaun, Hamirpur, Himachal Pradesh, forthwith, to enable it to proceed further with the matter.
15. Registry to send copy of instant judgment to the learned Additional Chief Judicial Magistrate, Court No. 1, Shimla as well as learned Judicial Magistrate 1 Class, Nadaun, Hamirpur, Himachal Pradesh, forthwith, to enable them to do the needful well within stipulated time.
16. In view of above, the present petition is disposed of, alongwith pending applications, if any.