HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Transfer Appl. No. 156 / 2017
Smt. Priyanka W/o Shri Praveen Bunkar D/o Shri Shankar Lal
Bunkar, Aged About 30 Years, Resident of Naadiya, Tehsil –
Galiyakot, District- Dungarpur, At Present Residing At Her Father
Shri Shankar Lal Bunkar, Resident of Savina Sector No. 09, House
No. 53, Near Parshwanath Complex, Udaipur (Rajasthan).
—-Petitioner
Versus
Shri Praveen S/o Shri Dev Shankar Bunkar, By Caste Bunkar,
Resident of Naadiya, Tehsil – Galiyakot, District – Dungarpur
(Rajasthan).
—-Respondent
__
For Petitioner(s) : Mr. MC Bishnoi
For Respondent(s) : Mr. Rakesh Matoria
__
JUSTICE DINESH MEHTA
Order
07/03/2018
The petitioner has preferred the present application under
Section 24 of the Code of Civil Procedure, seeking transfer of Case
No.11/2016, titled as “Parveen Vs. Smt. Priyanka” from the Court
of learned Additional District Sessions Judge, Sagwara,
Dungarpur to Family Court No.1, Udaipur.
Briefly stated the facts pertinent to the present case are that
the petitioner married with the respondent on 15.05.2009 as per
Hindu rituals. After their marriage, certain dispute arose between
them, which spoiled the relations, compelling the petitioner to file
two cases under Section 498A of IPC and under Section 12 of
Protection of Women from Domestic Violence Act, 2005.
The said cases were filed at Sagwara, when the petitioner
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[CTA-156/2017]
was living with her husband. After some time the petitioner had
come to her parents’ house at Udaipur, in a quest of a peaceful
life. In the meanwhile, respondent – husband has filed an
application under Section 13 of the Hindu Marriage Act, seeking
decree of divorce. Respondent has filed the same before Additional
District Sessions Judge, Sagwara.
Mr. MC Bishnoi, learned counsel for the petitioner submitted
that the petitioner is a mentally disturbed and challenged lady, for
whom attending the hearing at Sagwara is a daunting task.
Traveling to Sagwara, which is about 150 k.m. from Udaipur is
tedious looking to the petitioner’s condition, as she needs to be
accompanied by some adult member of the family for attending
the hearing at Sagwara.
Mr. Rakesh Matoria, learned counsel for the respondent,
while inviting the attention of this Court towards a bona fide
residence certificate dated 25.11.2002, submitted that the
petitioner is a permanent resident of Dungarpur, and that the
petitioner had filed two cases under Sections 498-A, 323 406 of
IPC before the ACJM, Sagwara and similarly the case of the
domestic violence has also been also filed at Sagwara.
Mr. Matoria, asserted that the petitioner is temporarily
residing at Udaipur and she wants to get the matter transferred to
Udaipur only with a view to harass the respondent and to satisfy
her whims.
He added that out of the two cases mentionedabove, one is
still pending, in which the petitioner has not made any efforts of
getting it transferred.
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[CTA-156/2017]
I have heard learned counsel for the parties and perused the
material available on record.
A perusal of the application under Section 13 of the Hindu
Marriage Act filed by the respondent – husband unravels that the
respondent himself has shown petitioner’s address as “near New
Pasharvnath Complex, House No.53, District Udaipur”.
Hence, the petitioner’s assertion that she is presently
residing with her parents at Udaipur, does not need any further
probe or deliberation. In other words, the respondent – husband
himself admits that the petitioner is residing at Udaipur.
As far as, other two cases filed by the petitioner are
concerned, the same had been filed on 31.03.2015 and
11.04.2016 respectively, when the petitioner was residing at
Sagwara, whereafter she had come to live with her parents at
Udaipur.
The mere fact that the petitioner had filed two criminal cases
in Sagwara, while she was living there, cannot be used as a tool to
stall her attempt/efforts of getting the case transferred to Udaipur,
as the petitioner is not residing at Sagwara any more.
Mr. Matoria, appearing for respondent has cited an order
dated 12.05.2017 passed by this Court in Civil Transfer Application
No.43/2017 titled as “Smt. Rakhi Sharma vs. Mukesh Sharma” to
buttress his submission.
A perusal of the said judgment and facts narrating therein
reveal that in that case the petitioner – wife, despite being a
resident of Pali had shown her temporary address of Jodhpur and
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tried to get the matter transferred to Jodhpur, which prayer was
negated by this Court.
The facts of the present case are entirely different, inasmuch
as the petitioner has not projected a wrong temporary address,
and she as a matter of fact is residing with her parents at Udaipur.
This fact has been admitted by the respondent – husband and the
same is duly reflected in the petitioner’s application under Section
13 filed by him.
In this view of the matter, this Court does not find any
substance in the argument of Mr. Matoria that the petitioner has
given her temporary address at Udaipur just with a view to get the
matter transferred.
In this view of the matter, I am of the considered view,
taking stock of overall fact-situation it will be in the interest of
justice and expedient to transfer the case in question to Udaipur
else the petitioner – wife will be put to great hardship, which she
is otherwise suffering on account of her mental health.
My aforesaid views are based on 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
Courtby Section 24 of the Code of Civil Procedure,
1908.
According to this Court, the provisions of Section
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[CTA-156/2017]
24 of the Code provides a great deal of discretion in
the, 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 castiron
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.”
Looking to the overall factual backdrop, more particularly; as
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petitioner is reported to be mentally disturbed, this Court deems it
appropriate to withdraw the Case No.11/2016 titled as “Parveen
Vs. Smt. Priyanka” from the Court of learned Additional District
Sessions Judge, Sagwara, Dungarpur and transfer the same to the
Family Court No.1, Udaipur.
Learned counsel for the rival parties shall inform their
respective parties to appear before the Family Court No.1, Udaipur
on 10.04.2018.
A copy of this order be sent to Family Court No.1, Udaipur as
well as Additional District Sessions Judge, Sagwara, District
Dungarpur for information and transmission of record.
The transfer application stands allowed.
(DINESH MEHTA), J.
Himanshu/- 21
