Smt. Ritu Mishra vs Brajesh Nagar on 9 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Transfer Appl. No. 45 / 2017

Smt. Ritu Mishra Wife of Shri Brijesh Nagar, Aged About 39 Years,
By Caste Mishra, Resident of Plot No. 426/41, Shringar Chavri,
Bihariganj, Ajmer (Rajasthan).
—-Petitioner
Versus
Shri Brijesh Nagar Son of Late Shri Mahesh Kant Nagar, By Caste
Brahmin, Resident of 16-B, Ambedkar Colony, Aabu Road.
—-Respondent

__
For Petitioner(s) : Mr Himanshu Soni
For Respondent(s) : Mr Vijay Mehta
__
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR

Judgment

09/11/2017

This Transfer Application under sec.24 CPC has been filed for

transfer of Case No.23/2016 {Brijesh Nagar v. Ritu Mishra} filed

under sec.13 of the Hindu Marriage Act, pending in the court of

Additional District Judge No.1, Abu Road to Family Court, Ajmer.

Briefly stated, marriage between the parties was solemnized

on 12.11.2009 at Ajmer. Out of the wedlock, one son namely

Krishna born on 01.10.2010. Due to ill-treatment and cruelty with

the petitioner, she filed a complaint No.115/2012 under

secs.498A, 406 IPC at Women Police Station, Ajmer. In said FIR,

after investigation Police has filed challan against the respondent

before ACJM No.2, Ajmer and the court has taken cognizance of

the offence against the respondent.
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It was also contended that the petitioner belongs to middle-

class family, she is not having any source of income and after

leaving her matrimonial home she is presently residing at her

father’s house situated at Ajmer. She has also filed an applciation

under secs.12 18 of the Protection of Women from Domestic

Violence Act before the Judicial Magistrate No.6, Ajmer. The

respondent has filed divorce petition under sec.13 of the Hindu

Marriage Act before the Additional District Judge No.1, Abu Road.

It was also contended that the petitioner belongs to poor

family, she has no source of income and presently she is living

with his father at Ajmer and is facing hardship and it is very

inconvenient for her to travel from Ajmer to Abu Road with her

minor child. The respondent has also threatened her to withdraw

the criminal case otherwise she has to face dire consequences.

The respondent has only intention to harass the petitioner and he

had also filed an application under sec.9 of the Hindu Marriage Act

before court at Palanpur (Gujarat), which was later withdrawn by

him on 13.07.2016.

Notices issued to the respondent were received duly served.

The respondent appeared before this Court through advocate and

filed reply, denying allegations of the petitioner. In the reply he

contended that it is wrong to say that the petitioner is having no

source of income as she is employed in Ajim Premji Foundation at

Tonk and getting salary of more than Rs.45,000/- per month. The

respondent also denied the fact that she is living with her father at

Ajmer and also contended that the petitioner is living at hundreds

of kilometers distance from Ajmer. He further contended that the
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respondent is paying Rs.5000/- per month towards maintenance

to the petitioner.

Heard learned counsel for the parties.

After marriage between the parties, a son namely Krishna

born to them on 01.10.2010, who is at present 7 years old. On

account of cruelty, the petitioner left her matrimonial home and

presently residing with her parents. She had filed a complaint

before the Women Police Station, Ajmer bearing No.115/2012

under secs.498A, 406 IPC, in which case it was stated that the

court has taken cognizance against the respondent. It was also

submitted on behalf of the petitioner that a case under secs.12

18 of the Domestic Violence Act has also been instituted by

petitioner against the petitioner, which is pending before Judicial

Magistrate No.6, Ajmer.

The respondent is said to be employed with the Indian

Railway as TTI. It was argued on behalf of the petitioner that two

cases are pending against the respondent in which he has to

attend on each every date at Ajmer. He is employed in the

Indian Railway as TTI, therefore also, he has no difficulty in

attending courts at Ajmer.

The respondent has although denied the fact that the

petitioner is having no source of income and stated that she is

employed with Ajim Premji Foundation at Tonk and getting salary

of Rs.45,000/- per month but he did not file any document in

support of this contention. So far as amount of maintenance as

stated to have been paid by the respondent to petitioner to the

tune of Rs.5000/- per month, it was submitted on behalf of the
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petitioner that this amount of maintenance is for minor child and

not for the petitioner wife. She do not have any independent

source of income and it is more inconvenient for her to travel all

alone with minor child from Ajmer to Abu Road. Even if it is

assumed that the petitioner is living presently at Tonk then also

the distance between Tonk and Abu Road is more than distance

between Ajmer and Abu Road.

In support of his contentions, learned counsel for the

petitioner relied on judgments in Archana Singh v. Alok Pratap

Singh: (2000) 3 SCC 744, wherein their Lordships of Supreme

Court held that offer to pay travel expenses not adequate to

recompense for difficulties which petitioner wife would have to

face, more so when she had a small child to look after.

The learned counsel for the petitioner has also produced

before the Court an order dated 21.12.2016 passed in Mediation

Settlement between petitioner and respondent at the Mediation

Center, Rajasthan High Court, Jaipur Bench, wherein the

respondent Brijesh Nagar and petitioner Smt Ritu Mishra mutually

agreed for transfer of the divorce petition from Abu Road to Ajmer.

Looking to the facts and circumstances of the case, the

inconvenience of the petitioner lady has to be considered. In view

of the above and in light of judgment of Hon’ble Supreme Court in

Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap

reported in 2016 (4) WLN 237 (SC) as well as observation made

by their Lordships of the Apex Court in Archana Singh v. Alok

Pratap Singh: (2000) 3 SCC 744, it is a fit case to be transferred.
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Accordingly, this Transfer Application is allowed and the Case

No.23/2016 {Brijesh Nagar v. Ritu Mishra}, filed by the

respondent under sec.13 of the Hindu Marriage Act, pending

before the Additional District Judge No.1, Abu Road is ordered to

be transferred to the Family Court, Ajmer.

(DR. VIRENDRA KUMAR MATHUR), J.

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