NEERAJ ASSOCIATES ONLINE INTERNSHIP

SITUATION: 101

Q: - Available legal remedies?

ANS: - The following legal remedies are available to the respondent-

 She may file a suit under section, 498A, 406, 323, 504, 506, of Indian Penal Code,1860,
Section 3/4 of dowry prohibition act, Section 3, Section 20, section 19(8), Section 22 of
Domestic Violence Act
 She may also file a suit for maintenance to fulfill her as well as her child’s needs as per
section 125 Crpc.
 She can also file for a divorce under section -13 Hindu Marriage Act on the ground of
cruelty by her husband’s family on her as well as her newly born daughter.

Q: - Whether Section 9 of HMA can be transferred

from Indore.

ANS: Yes! It can be transferred from Indore to Lucknow.

Q: - If answer to the Q:2 is Yes. Then explain why, where and what will be the
process.

ANS: Yes! The case can be transferred to the district of Lucknow from the district of Indore.

The respondent “A” wife of “B” left Indore and went back to her Maternal home with a newly
born daughter. Post marriage B and his family members tortured A by taunting, abusing and
harassing her forced for not getting enough dowry and for giving birth to girl child.

Consequently, A left the B’s house and went to her maternal home, on the ground of mental,
physical injury as well as she is having a small girl child it becomes quite difficult for her to
travel from one state to another for hearings and due to the lack of money as she is not a earning
women thus the case must be transferred from Indore to Lucknow.

This has also been claimed in the similar case of Ekta Nagpal v. Yashveen1

1
2019 SCC, 08-01-2019.
Process:

Section 21 of HMA – Subject to all provisions contained Hindu marriage act, all proceedings
under this act shall be regulated by the Code of Civil Procedure,1980.

There are two options for transferring a case

1. If the case needs to transferred from one district to another district within the
state.Section 24 of CPC- General power of transfer and withdrawal.-

(1) On the application of any of the parties and after notice to the parties and after hearing such
of them as desired to be heard, or of its own motion without such notice, the High Court or the
District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any
Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or
dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the
Court which thereafter tries such suit may, subject to any special directions in the case of an
order of transfer, either retry it or proceed from the point at which it was transferred or
withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed
to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small
Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

2. If the case needs to be transferred from one state to another state-

Section 25 of CPC-Power of State Government to transfer suits-

(1) Where any party to a suit, appeal or other proceeding pending in a High Court presided over
by a single Judge objects to its being heard by him and the Judge is satisfied that there are
reasonable grounds for the objection, he shall make a report to the { Subs. by the A.O.1937 for
"G.G.in C." } [State Government], [which] may, by notification in the Official Gazette transfer
such suit, appeal or proceeding to any other High Court:

[Provided that no suit, appeal or proceeding shall be transferred to a High Court without the
consent of the State Government of the State in which that High Court has its principal seat.]

(2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the
Court in which the suit, appeal or proceeding was originally instituted ought to have applied to
such case
In the case of Maneka Gandhi v. Rani Jethmalani3 it was held that fair trial is the integral
part of the justice delivery system and if there are compelling reasons which shows that one of
the party will not get a fair trial, then it is necessary for one to use the power for transferring the
case. It is pertinent to see here that to imparting fair trial it ought to be fair enough to transfer the
case to the newly destination as directed by the court as in this position it might be hindered by
the B’s family as his father is as SP, he might use every possible effort to create obstacles for A.

In the case of KalwinderKaur v Kandi Friend Education Trust 2 it was held that it is the
discretionary power of the court but the same need to approach with due care and caution. In this
instant case the court has to take due care and caution while transferring the case as it might help
in giving fair, impartial, and reasonable justice to the needy.

Q: - Benefits of contesting Section 9 of HMA in Indore.

ANS:. The benefits of contesting the proceeding under section 9 of HMA in Indore are only that
it will become easier for the petitioner which is B to attend the daily proceedings of the case.

2
2008 (2) SCC 659.
3
(1979) 2 SCR 378.
Q: - Benefits of Contesting Section 9 of HMA if it can be Transferred to some
other location.

ANS: The benefits if the contesting Section 9 of HMA if it takes place in the Lucknow-

 The respondent B wife of A lives in Lucknow, it will become easier for her to attend the
hearing again and again without facing any difficulty of travel.
 As she is not a earning women it will become easier for her to attend the hearing as well
as she will be able to look out for her little daughter.

By – PUSHKAR PANDEY