Smt. Shabnam Bano vs Ayub Ali on 28 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

..

S.B. Civil Transfer Application No. 23 / 2016

Smt. Shabnam Bano D/o Mohammad Beg Mirza W/o Ayub Ali, Age

about 31 years, R/o Kasaiyo Ka Mohalla, Kabristan Gali, Lohari

Kuan, Dantaramgarh, Tehsil-Danta, District-Sikar (Raj.).

—-Petitioner

Versus

Ayub Ali S/o Late Najir Khan Musalman, Aged 33 years, R/o

Mitharamji Ka Kheda, Pratapnagar, Chittorgarh.

—-Respondent

__
For Petitioner(s) : Mr. Manish Pitaliya.
For Respondent(s) : Mr. V.N. Kalla.
__
JUSTICE DINESH MEHTA
Order
28/11/2017

BY THE COURT:

The present application under Section 24 of the Code of Civil

Procedure has been filed by the petitioner-wife for transfer of a

case filed by her husband for dissolution of the marriage in the

Family Court at Chittorgarh.

(2 of 7)
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Shorn of unnecessary details, the facts relevant for deciding

the present transfer application are that the petitioner-wife got

married with the respondent on 20.05.2006, at Sikar. After the

marriage, the petitioner started living at Chittorgarh with her

husband, who has been serving as a skilled labour. Soon after the

marriage, the nuptial life of the couple got disturbed for which,

the petitioner-wife cane back to her parental home at Sikar.

When efforts of reconciliation failed, the respondent-husband

instituted a petition for divorce in the Family Court at Chittorgarh

on 14.09.2015. In the period interregnum, the petitioner-wife

also filed a petition on 27.08.2015, under Section 125 Cr.P.C.,

claiming maintenance and another being a complaint under

Section 498-A of the Indian Penal Code, which was lodged on

26.08.2015.

Learned counsel for the petitioner-wife Mr. Manish Pitaliya

canvassing the cause of the petitioner submitted that the

petitioner is an unemployed lady and presently residing with her

parents, at Sikar and if to defend the present case filed by the

respondent-husband for dissolution of the marriage, is a torture

by itself, as taking journey for about 500 kilometers from Sikar to

Chittorgarh poses a financial burden on her besides inconvenience

to the family as she has to carry at least one companion all the

way to Chittorgarh. He further submitted that the aforesaid two

cases lodged by the petitioner-wife are already pending in the

Courts at Chittorgarh for which, it would in the interest of justice

and expedient for the respondent-husband also, if the present

case (Divorce Petition No. 18/2015 titled as “Ayub Ali Vs. Smt.
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Shabnam) pending in the Family Court at Chittorgarh also be

transferred to the Family Court at Sikar. Learned cousnel for the

petitioner cited a judgment of Hon’ble the Supreme Court in the

matter of T. Gayatri Devi (Smt.) Vs. Dr. Tallepaneni Sreekanth,

reported in 2013 DNJ (SC) 758 and pointing out the facts of the

case submitted that High Court had rejected wife’s transfer

application on the ground that the applicant-wife is a Company

Secretary and is not a destitute woman and capable to contest the

suit filed by her husband. Setting aside the same, Hon’ble the

Supreme Court, after consideirng the law, ordered transfer of the

case from Hyderabad to Kakinada. With these arguments, learned

counsel Mr. Manish Pitaliya appearing for the petitioner submitted

that the case at hand is a fit case to be transferred from

Chittorgarh to Sikar.

Vehemently opposing the petitioner’s prayer for transfer of

the Divorce Petition, learned counsel Mr. V.N. Kalla, appearing for

the respondent-husband relied upon a judgment of the Hon’ble

Supreme Court in the case of Anindita Das Vs. Srijit Das,

reported in (2006) 9 SCC 197; judgments of this Court in the

case of Dimple Soni (Smt.) Vs. Praveen Kumar, reported in

2013(1) DNJ (Raj.) 84; and in the case of Jayant Kumar

Gehlot Vs. Smt. Sunita Gehlot (S.B. Civil Misc. Transfer

Petition No.52/2015, decided on 01.02.2016) to canvass that

mere inconvenience of the wife cannot be a ground to transfer a

the case from one Court to another.

Heard learned counsels for the parties and considered the

material available on record and the judgments cited at Bar.

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In the present case, the petitioner is residing with her

parents at Sikar from which, the place at which, the impugned

case for dissolution of marriage has been filed which is Chittorgarh

is also 500 kms. away. The petitioner’s predicament appears to be

correct that for travelling from Sikar to Chittorgarh, she will have

to undertake a long journey for which, she would required a

companion. Apart from the aforesaid hardship, the petitioner

herself has instituted two cases under Section 125 Cr.P.C. and

498-A of the Indian Penal Code on 26/27.08.2015. The

respondent-husband, in any case, would be defending these cases

at Sikar, for which, it would be expedient and in the interest of

justice to transfer the case from Chittorgarh to Sikar.

The judgment of Hon’ble the Supreme Court in the matter of

Anindita Das Vs. Srijit Das (supra), is a judgment in which

Hon’ble the Supreme Court had observed that there are floods of

transfer petitions being filed by the women taking advantage of

the leniency shown by the Courts and each matter is required to

be considered on its merit, while disposing the said transfer

petition. In view of the concern shown by Hon’ble the Supreme

Court, this Court deciding the present transfer petition on its own

facts weighing comparative hardships of both the parties.

Coming to the other judgment of this Court in the matter of

Dimple Soni (Smt.) Vs. Praveen Kumar (supra), this Court has

rejected the transfer petition of the petitioner-wife observing that

the petitioner is a resident of Bikaner, which is hardly 135 kms.

from Nagour where the proceedings sought to be transferred were

pending. As such, the relevant consideration of distance between
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the places of proceedings and place of residence has been found

by this Court too little to transfer a matter. As against this, in the

present case, Sikar and Chittorgarh are almost two extreme ends

of a largest State of this country. Keeping this consideration in

mind, this Court is of the firm view that transfer of the case is

utmost necessary.

My aforesaid view are fortified by a judgment of this Court in

the case of Smt.Vinita Vs. Himanshu, reported in AIR 2017

Rajasthan 102, wherein this Court has held as under:-

“It is, therefore, felt imperative to examine and
explore the necessary principles governing transfer
applications, filed by families, entangled in forensic
fights, while invoking powers conferred upon this Court
by Section 24 of the Code of Civil Procedure, 1908.

According to this Court, the provisions of Section
24 of the Code provides a great deal of discretion in
the court, however, such discretion is required to be
exercised on the basis of sound principles. It is true
that the discretionary power, more particularly, the
jurisdiction in relation to transfer of cases, can not be
imprisoned or bound within a straight jacket or cast-
iron formula, uniformly applicable to all situations, yet
the courts are required to be mindful of the fact that
the power to transfer a case must be exercised with
due care, caution and circumspection.

Keeping in mind the provisions and mandate of
Sections 24 and 25 of the Code, various judicial
pronouncements have laid down broad propositions as
to what may constitute a ground for transfer of a case.
Generally speaking, they are, balance of convenience
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or inconvenience to the plaintiff or defendant or
witnesses; convenience or inconvenience arising out of
a particular place of trial, having regard to the nature
of evidence or the points involved in the case; issues
raised by the parties; and, reasonable apprehension in
the mind of a litigant that he might not get justice in
the court, where the proceedings are pending, or
reasonable apprehension of failure of justice on the
basis of a proven bias. These few factors are some of
the aspects, germane in considering the question of
transfer of a suit, appeal or other proceedings.

It may be true that distance alone may not be
decisive factor but it has its own role while considering
the convenience of the parties, particularly, a wife.
Court should focus on the convenience rather than
redressal or mitigating against inconvenience.
Convenience itself is a vital factor, to be reckoned
while deciding a Transfer Petition. Suffice it to say, that
in the present case, it is not the distance alone for
which this Court finds that it would be convenient for
the petitioner-wife to defend the case in question at
Bhilwara instead of Chittorgarh. There are other
surrounding circumstances stated above, for which this
Court feels it appropriate to transfer the case to the
court at Bhilwara.”

Adverting to another judgment cited by Mr. V.N. Kalla,

rendered in the case of Jayant Kumar Gehlot Vs. Smt. Sunita

Gehlot and Sm.t Sunita Gehlot Vs. Jayant Kumar, decided on

01.02.2016, suffice it to observe that this Court has recorded a

finding of gravity of physical conditions of the husband, while

refusing transfer of the case at the instance of wife. The following
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finding recorded by the Court requires special mention for which,

it is being reproduced as under:-

“The material available on record, indicates the
fact that husband is undergoing some medical
condition, wherein he is undergoing treatment at
hospitals at Jodhpur, the prescriptions produced prima
facie indicate an orthopedic condition pertaining to
spine. The grave of such condition, though is not
apparent from the material available on record,
however, there is no denial of the fact that the
husband is in fact undergoing treatment. A plea has
been raised by the wife that though the husband has
been advised surgery, he has refused to undergo
surgery. The very fact that based on a medical
condition, the husband has been suggested to undergo
surgery, gives some indication pertaining to the
medical conditions.”

In view of the discussion above, the present transfer

application filed by the applicant-wife stands allowed; and the

Divorce Petition No. 18/2015 titled as “Ayub Ali Vs. Shabnam”

filed by the respondent-husband at Chittorgarh is ordered to be

transferred to the Family Court at Sikar.

(DINESH MEHTA), J.

/Mohan/28

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