Avantika Sharma vs Gyaneshwar on 27 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Transfer Appl. No. 112 / 2016
Avantika Sharma W/o Gyansehwar D/o Nawal Kishore Sharma,
Aged about 30 years, by caste Brahmin, R/o 44, BasantVihar
Colony, Police Line, Ajmer (Raj.). Presently residing at 4/231,
Vinayak Complex, Panchsheel, Ajmer.

—-Petitioner
Versus
Gyaneshwar S/o Om PrakashShastri, Aged about 33 years, B/C
Brahmin, R/o Near MohtaMandir, Rajgarh, District Churu.

—-Respondent
__
For Petitioner(s) : Mr. Dinesh Godara
For Respondent(s) : Mr. Sheetal Kumbhat
__
JUSTICE DINESH MEHTA
Judgment
27/11/2017

The present transfer application under Section 24 of the

Code of Civil Procedure has been filed by the petitioner – wife, who

got married with the respondent on 07.03.2011. The petitioner

has prayed to transfer the case No.81/2016 titled as “Gyaneshwar

Vs. Avantika Sharma”. The petitioner prays to transfer the

aforesaid case filed by her husband under Section 13 of the Hindu

Marriage Act, 1995 for dissolution of the marriage, from Rajgarh,

District Churu to Ajmer.

The petitioner has stated that after stress in the matrimony,

she has shifted to her parents’ house at Ajmer and recently she

has been appointed as an Ayurvedic doctor on contractual basis,

vide order dated 03.06.2016. The petitioner has further stated

that she is having a three year old daughter, who requires daily
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care and her presence at Ajmer.

The petitioner has contended that participation in the subject

proceedings at Rajgarh, District Churu, which is about 400 kms.

from petitioner’s place of residence, is an ardent task, in the facts

obtaining in the present case.

Mr. Sheetal Kumbhat, learned counsel appearing for the

respondent submitted that the respondent-husband is an engineer

in Bombay Off Shore having 15 days duty at Off-shore. It has also

been submitted on behalf of the respondent that his family is

residing at Rajgarh; for which, it would be appropriate that the

case instituted by his is kept at Rajgarh.

Mr. Kumbhat, invited attention of this Court towards para

No.4 of the divorce petition to assert that the petitioner’s uncle

(Tau) is a member of Revenue Board, Ajmer, while her brother is

Additional Superintendent of Police in Ajmer, for which reasons, it

would not be appropriate to transfer the present case to Ajmer. He

further submitted that mere convenience of wife should not be

and cannot be a consideration or reason to transfer a divorce

petition. In support of this contention, Mr. Kumbhat relied upon

judgment of this Court reported in 2017 (2) DNJ (Raj.) 916 (Neetu

Kumari Vs. Rajendra Kumar Salvi) and judgment of Hon’ble

Supreme Court reported in 2006 (9) SCC 197 (Anindita Das Vs.

Srijit Das).

In addition thereto, Mr. Kumbhat, cited another judgment of

Hon’ble Supreme Court reported in 2017 (1) WLC (SC) Civil 660,

(Krishna Veni Nagam Vs. Harish Nagam) particularly para No.14

thereof, which is being reproduced hereunder:

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14.”One cannot ignore the problem faced by a
husband if proceedings are transferred on account of
genuine difficulties faced by the wife. The husband
may find it difficult to contest proceedings at a place
which is convenient to the wife. Thus, transfer is not
always a solution acceptable to both the parties. It
may be appropriate that available technology of video
conferencing is used where both the parties have
equal difficulty and there is no place which is
convenient to both the parties. We understand that in
every district in the country video conferencing is now
available. In any case, wherever such facility is
available, it ought to be fully utilized and all the High
Courts ought to issue appropriate administrative
instructions to regulate the use of video conferencing
for certain category of cases. Matrimonial cases where
one of the parties resides outside court’s jurisdiction is
one of such categories. Wherever one or both the
parties make a request for use of video conference,
proceedings may be conducted on video conferencing,
obviating the needs of the party to appear in person.
In several cases, this Court has directed recording of
evidence by video conferencing [State of
Maharashtra etc. v. Dr. Praful B. Desai etc. 2003
(4) SCC 601; Kalyan Chandra Sarkar Vs. Rajesh
Ranjan alias Pappur Yadav and anr. 2005 (3) SCC
284; Budhadev Karmaskar (4) Vs. State of West
Bengal 2011 (10) SCC 283; Malthesh Gudda Pooja
Vs. State of Karnataka and Ors., [2012 (1) WLC
(SC) Civil 135: 2011 (15) SCC 330].”

With the help of these judgments, counsel for the

respondent submitted that the Court is required to consider the

difficulty of husband also.

Heard rival counsels and considered the material available
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on record.

The facts undisputed in the extant case are; that the

petitioner is a lady residing at Ajmer with her parents after

desertion and working with the State Government on contractual

basis under the scheme ‘National Health Mission’.

The predicament of the petitioner can be well understood by

this Court; being a contractual employee, it would be difficult for

her to take leave and undertake the grueling journey, not to

mention incurring the expenditure to attend the hearing at a

small town 400 kms away (Rajgarh, District Churu) from Ajmer.

Apart from above, the petitioner is having a young daughter

of tender age of three years, who also requires her care, time and

attention. The hearing at Rajgarh, District Churu, would at least

consume two days for which, period it is not feasible for her to

leave her child unattended.

In view of the factual backdrop obtaining presently, this

Court is of the considered opinion that it would not be conducive

for the petitioner to attend the Court proceedings at Rajgarh,

District Churu.

As against this, it will not be difficult the respondent serving

at Bombay Off Shore, to attend the hearing at Ajmer, as it is well

connected through rail and road network. Rather it would be

more convenient for him to attend the hearing at Ajmer, than

attending the hearing at Rajgarh, District Churu, a far-flung town

in the north western part of Rajasthan.

As far as the judgments cited by Mr. Kumbhat are
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concerned, firstly the one rendered by this Court in Neetu

Kumari’s case (supra) is distinguishable on facts, as this Court

had rejected the transfer application in that case, inter alia

observing that both the parties are the government employees

and that the matter in that case was requested to transfered in

Family Court, Pali. This Court, rejecting the transfer application

had clearly observed that “the petitioner has got no issue to

whom, she is required to take care”. Therefore, there is a clear

distinction between the facts of the present case and that of

Neetu Kumari’s case, inasmuch as, the petitioner in the latter

case had no issue, whereas in the former, the petitioner is

admittedly having a daughter of three years of age.

The judgment of Hon’ble Supreme Court rendered in case of

Anindita Dass Vs. Srijit Das, para No.3 4 whereof have been

relied by Mr. Kumbhat, is also of little help to the petitioner. It

would be apt to reproduce the paragraph No.3 4 of the said

judgment:-

“3. Even otherwise, it must be seen that at one stage
this Court was showing leniency to ladies. But since
then it has been found that a large number of transfer
petitions are filed by women taking advantage of the,
leniency shown by this Court. On an average at least
10 to 15 transfer petitions are on board of each court
on each admission day. It is therefore, clear that
leniency of this Court is being misused by the women.

4. This Court is now required to consider each petition
on its merit. In this case the ground taken by the wife
is that she has a small child and that there is nobody
to keep her child. The child, in this case, is six years
old and there are grandparents available to look after
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the child. The respondent is willing to pay all expenses
for travel and stay of the petitioner her companion for
every visit when the petitioner is required to attend
the court at Delhi. Thus, the ground that the petitioner
has no source of income is adequately met.”

It is pertinent to note that in the aforesaid case, the Hon’ble

Supreme Court has found that the petitioner’s daughter was six

years of age and while rejecting request for transfer, had directed

the respondent to pay traveling expenses.

While rejecting the prayer of transfer, the Hon’ble Supreme

Court had observed that the petitioner was not engaged in any

service or employment. The facts of the above case are clearly

distinguishable from the facts of the present case. 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. Petitioner in

the instant matter is having contractual employment at Ajmer

and taking leave and attending hearing at Rajgarh would be

inconvenient to her, besides taking care of her 3 year old

daughter.

The third judgment cited was, Krishna Veni’s case (supra),

para No.14 of the judgment aforesaid, heavily relied upon by
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learned counsel for the respondent.

The principle expounded by Hon’ble Supreme Court in the

judgment aforesaid is that the Court cannot ignore the problem

faced by the husband, if proceedings are transferred.

If facts of the present case, as noticed above are

considered, if the respondent-husband is required to attend the

hearing at Rajgarh, District Churu, he will have to undertake the

journey from Mumbai to Rajgarh District Churu, which is not well

connected from Mumbai; whereas if the case is transferred as

prayed, the respondent will be required to undertake journey

from Mumbai to Ajmer, which would obviously be less burden-

some for him as Ajmer is well connected through rail and road

network or alternatively travel from Jaipur, which is just 125 kms

from Ajmer and air connectivity to Mumbai. Hence, if the matter

is transferred to Ajmer, it would be convenient for the

respondent-husband also.

My aforesaid views are fortified by the judgment rendered

by this Court in case of Smt. Vinita Vs. Himanshu, reported in AIR

2017 Raj 102, relevant part whereof is being reproduced

hereunder :-

“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
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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
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.”

Keeping in view, the facts and law narrated above, this

Court is of the opinion that it would be in the fitness of the things
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and interest of justice to transfer the case to Ajmer. As such, the

case No.81/2016 is withdrawn from Additional District Judge,

Rajgarh, District Churu stands transferred to Family Court, Ajmer.

A copy of this order be sent to Additional District Judge,

Rajgarh, District Churu as well as Family Court, Ajmer, so as to

facilitate the transmission of record.

The transfer application is allowed, in above terms.

(DINESH MEHTA), J.

Upendra/5

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