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
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For Petitioner(s) : Mr Himanshu Soni
For Respondent(s) : Mr Vijay Mehta
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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before court at Palanpur (Gujarat), which was later withdrawn by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.
mma