HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Civil Transfer Appl. No. 23 / 2017

Smt Priti Jain
W/o Shri Kunal Jain & D/o Shri Om Prakash Ganeriya, Aged About 31 Years,
R/o C-16, UIT Colony, Bhopalpura Road, Shashtri Nagar, Bhilwara. —-Petitioner

Versus
1. Kunal Jain S/o Shri Kailash Chand Jain,
R/o Kalyan Colony,Ajmer Road, Tehsil Kekari, District Ajmer.

2. Shri Rajendra Kumar Sharma-III, Judge, Family Court, Bhilwara

3. Niranjan Jain S/o Shri Ashok Jain,
R/o 86/243, Sector-8 Pratapnagar Sanganer, Tehsil Sanganer, District Jaipur. —-Respondents

For Petitioner(s) : Mr Narendra Singh on behalf of Mr Rakesh Arora
For Respondent(s) : Mr Mridul Jain

HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
21/07/2017

This Transfer Application under sec.24 CPC has been filed by the petitioner praying for transfer of Civil Misc. Case No.686/2016 (Kunal Jain v. Smt Priti & anr.) and Civil Misc. Case No.106/2015 (Smt Priti Jain v. Kunal Jain) from the Family Court, Bhilwara to any other appropriate court.

Briefly stated, the marriage between the parties was solemnized on 10.12.2013 at Kekari, District Ajmer. Relation between them could not remain cordial and as such, from February 2014 they are residing separately.

It is submitted that with a view to save her matrimonial life, the petitioner filed an application under sec.9 of the Hindu Marriage Act before the Family Court, Bhilwara on 09.03.2015. The respondent, after getting notice of that petition, filed another application under sec.13 of the Hindu Marriage Act before the Family Court (Additional District Judge), Kekari on 10.03.2015. In compliance of High Court’s order dated 31.08.2015, the petitioner filed an application before the learned Family Court, Kekari and accordingly, the Family Court, Kekari vide order dated 02.09.2016 transferred the case to Family Court, Bhilwara.

The Family Court, Bhilwara took up the case for the first time on 27.07.2016 and on that day, the petition under sec.9 of the Act filed by the petitioner and the petition under sec.13 of the Act filed by the respondent No.1, both were ordered to be clubbed and tried together.

It is alleged that the cases were then adjourned to 15.10.2016 but on that day, the Presiding Officer (respondent No.2) was on leave. Then the case was fixed for 11.11.2016, on which day Vakalatnamas were filed and the cases were adjourned for filing reply. Thereafter, the cases were adjourned to 17.12.2016, on which day documents along with list were filed by the respondent No.1 and the matter was adjourned to 06.01.2017. On 06.01.2017, the trial court ordered for clubbing and trying both the cases together and also framed issues. The next date was fixed as 23.01.2017. On 23.01.2017, three affidavits were filed in evidence on behalf of respondent No.1 in the petition filed under sec.13 of the Act.

It is contended that on 23.01.2017, though the respondent No.2 was on leave for first half of the day yet he directed the Reader not to adjourn this matter and also directed to adjourn all other cases. As a matter of fact, when copies of affidavits were given to the petitioner on 23.01.2017 then there was no possibility to cross-examine the witnesses on the same day and therefore, it should have been adjourned. However, the respondent No.2 the Presiding Officer intentionally kept the case for further proceeding on the same day and insisted the counsel for the petitioner and respondent No.3 to cross-examine the witnesses on the same day. The counsel for the petitioner as well as counsel for the respondent No.3 requested for adjournment but the respondent No.2 declined adjournment and insisted for cross-examination, with clear oral observation in open court that relation between the parties can not remain intact any more and the marriage must be dissolved. Upon this observation, the counsel for the petitioner as well as counsel for respondent No.3 objected that the court should not disclose its mind even at the stage when there is no evidence on record. Then the Presiding Officer again observed that he had seen the video CD in chamber and therefore, after viewing such video CD he will not allow to continue the marriage any more. There is no such proceeding, however, in the order-sheets about viewing video CD in chamber.

It was further contended that earlier to 23.01.2017, pin-hole camera and memory-card were not on record and it was only on 23.01.2017 that those two articles were placed on record, though it was objected by the counsel for the petitioner that now at this stage these two articles can not be taken on record because they were not referred and submitting at the time of filing of the petition by the respondent but the objection was over-ruled by the respondent No.2.

Upon requests as also objection by the counsel for the petitioner against cross-examining the witnesses on the same day, the respondent No.2 adjourned the case to 06.02.2017, 07.02.2017 and 08.02.2017 i.e. continuously for three consecutive days, for examining 3 witnesses, namely Kunal, Mukesh and Gyanchand Jain. While fixing the matter for 06.02.2017, it was also made clear that no further adjournment will be given for cross-examination of these witnesses and he will be deciding the case because there is no merit in the case in favour of petitioner and the relation could not be continued any more.

It was also submitted that the application filed under sec.13 of the Act by the respondent No.2 came to be transferred to the court of respondent No.2 only in the month of September 2016 and at that time, the case was at initial stage i.e. at the stage of filing reply. It was only on 06.01.2017 that these cases were consolidated and on the same day, issues were framed.

It was also contended that the manner in which the proceedings are being conducted by the respondent No.2, making comments in open court, insistence by the respondent No.2 to cross-examine the witnesses on the same day on which affidavits were filed and observations repeatedly made in open court in presence of litigants and advocates about allegation of adultery against the petitioner, go to show that there is no hope of justice from the court of respondent No.2. On the basis of these grounds, transfer has been sought, of the Civil Misc. Case No.686/2016 along with its connected Civil Misc. Case No.106/2015 pending before the respondent No.2, to any other appropriate court.

On 15.02.2017, this Court while issuing notices to the respondents, asked explanation from the respondent No.2 relating to averments made in the present petition. It was also ordered that in the meanwhile, no final order shall be passed. The explanation of the respondent No.2 has been received and placed in this file.

Heard learned counsel for both the parties and perused the explanation submitted by the respondent No.2

The counsel for the petitioner reiterated the averments made in the Transfer Application. The counsel for the respondent No.1 opposed the petition by contending that the facts mentioned in the Transfer Application are not correct. The petitioner Smt Priti Jain has earlier filed a Transfer Application No.8/2016 before the High Court Bench at Jaipur and that petition was dismissed on 18.03.2016 as withdrawn. Later on, a Civil Misc. Application No.4882/2016 was filed on 21.04.2016, which was also disposed of on 01.06.2017. Again, this Transfer Application has been filed.

On perusal of the explanation submitted by the respondent No.2, it is revealed that the facts narrated by the petitioner are not correct. As per order-sheet dated 23.01.2017, on that day no witnesses were cross-examined and on request of the petitioner, time was granted and the cross-examination was kept reserved. In respect of viewing of video CD, the respondent No.2 submitted that this fact is incorrect. An objection was raised by counsel for the petitioner in respect of original camera and memory card and the objection was disposed of as per sec.14 of the Family Court Act, 1984. The petitioner is taking all sort of practice to delay expeditious disposal of the case.

Learned counsel for the respondent No.1 also submitted that in the case pending before the Family Court, Bhilwara, recording of evidence is now complete and the case is fixed for arguments on 28th of this month.

In view of the facts of the present case and explanation submitted by the respondent No.2, there is no ground for transferring the cases pending before the Family Court, Bhilwara to any other court. The Transfer Application is dismissed.

(DR. VIRENDRA KUMAR MATHUR)