HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Transfer Appl. No. 63 / 2017
Smt. Ridhi @ Radhika D/o Sita Ram W/o Rahul Sharma, Aged
About 25 Years, By Caste Brahmin, Resident of C/o Radheshyam,
Bada Bas, Dhana Mohalla, Near Motiji Chaki, Mathaniya, P.S.
Mathaniya, District Jodhpur. WIFE
—-Petitioner
Versus
Rahul Sharma S/o Shri Ramesh Dutt, By Caste Brahmin, Resident
of House No. 340, K-1, Bhopalpura, Udaipur. HUSBAND
—-Respondent
__
For Petitioner(s) : Mr. Pradeep Choudhary
For Respondent(s) : Mr. RS Mankad
__
JUSTICE DINESH MEHTA
Order
28/11/2017
The present application has been filed by petitioner – wife for
transferring the Case No.628/2016 titled as “Rahul vs. Smt. Ridhi
@ Radhika” from Family Court, Udaipur to Family Court No.1,
Jodhpur.
The petitioner has averred in the present petition that her
marriage was solemnized on 10.02.2015 at Kankroli. After the
marriage, both the petitioner-wife and respondent-husband
started living in Udaipur. But after disturbance in the matrimony,
petitioner was forced to come to her native place at Mathaniya.
The petitioner has filed three cases against the respondent –
husband (i) 498A, 406 313 of the IPC, (ii) Section 12 read with
Sections 18, 19, 22 23 of Protection of Women from Domestic
Violence Act, 2005 and (iii) 125 of Cr.P.C for maintenance against
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the respondent – husband. All these case are said to be pending in
Jodhpur.
Praying for transfer of the present case from Family Court,
Udaipur to Family Court No.1, Jodhpur, the petitioner has stated in
the present petition that a day before her marriage, her father
went missing, for which her marriage was performed by her close
relatives. Petitioner has stated that she alongwith her old mother
is living with her uncle in village Mathaniya near District Jodhpur.
The petitioner claims to have no source for livelihood and is totally
dependent upon her uncle.
Mr. Choudhary, learned counsel for the petitioner reiterating
the above facts stated that the respondent – husband has not
even paid maintenance of Rs.4,000/- awarded by Court at
Jodhpur, for which it is very difficult to attend the proceedings at
Udaipur.
Mr. Choudhary cited a judgment of Supreme Court rendered
in case of Sunita Singh vs. Kumar Sanjay reported in AIR
2000 SC 396 and submitted that inconvenience of wife is
required to be seen by the Court.
Per contra, Mr. RS Mankad, learned counsel for the
respondent submitted that though marriage was solemnized at
Kankroli, but after the marriage petitioner and respondent-
husband used to live in Udaipur, for which the respondent –
husband rightly has instituted the present case for dissolution of
marriage at Udaipur. According to Mr. Mankad the Court at
Jodhpur is having jurisdiction as per Section 19 of the Hindu
Marriage Act, 1955.
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Learned counsel for the respondent submitted that mere
inconvenience of the petitioner – wife should not be a reason to
transfer the case and the Court should keep in mind the
jurisdiction of the Court based on cause of action as held by
Supreme Court in the judgment reported in AIR 2007 SC 3157.
Heard learned counsel for the parties and perused the
material available on record.
The petitioner before this Court is a wife, a daughter whose
father has already left the family and his whereabouts are not
known. She is now dependent upon her uncle, with her old mother
in a small village near Jodhpur. In such circumstances, in
considered opinion of this Court taking up journey to Udaipur for
attending the divorce proceedings will be troublesome. Apart from
this, the petitioner has already lodged three cases against the
respondent – husband, which are pending in District Jodhpur;
proceedings in relation thereto are otherwise being attended by
the respondent.
In overall factual matrix, this Court is of the considered
opinion that the interest of justice warrants that the present case
pending before Family Court, Udaipur be transferred to Family
Court No.1, Jodhpur, where the petitioner usually resides.
The Supreme Court in the case reported in AIR 2007 SC
3157 cited by Mr. Mankad is concerned, has held that the Court
should bear in mind the cause of action while deciding an
application under Section 24 of the Act.
The cause of action and the place where the petition is
required to be filed, has been provided in Section 19 of the Hindu
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Marriage Act, 1955.
A perusal of Section 19 of the Act of 1955 shows that a
petition under the provisions of this Act can be filed at any of the
places viz. (i) where the marriage was solemnized, or (ii) the
respondent, at the time of presentation of the petition resides, or
(iii) the parties to the marriage last resided together, or [(iii-a) in
case the wife is the petitioner, where she is residing on the date of
presentation of the petition, or] (iv) ……………………
A look at the provisions aforesaid clearly suggests that a
petition under the Hindu Marriage Act can be presented while
keeping in mind any of the above referred four contingencies. In
the present case, the petition ought to have been filed at Jodhpur,
where the petitioner (respondent) is residing. If the respondent –
husband has field the present case at Udaipur while invoking
clause-(ii) of Section 19, the other provisions of Section 19 cannot
be given a good bye. 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 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
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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.”
Looking to the present factual and legal matrix, this Court is
of the considered opinion that the case at hand pending before
Family Court, Udaipur is required to be transferred to Family Court
No.1, Jodhpur.
The transfer application is, therefore, allowed. The Case
No.628/2016 (Rahul vs. Smt. Ridhi) is withdrawn from Family
Court, Udaipur and transferred to Family Court No.1, Jodhpur. A
copy of this order be sent to Family Court, Udaipur as well as
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Family Court No.1, Jodhpur for facilitating the transmission of
record.
The parties shall keep themselves present on 15.12.2017
before Family Court No.1, Jodhpur for further proceedings.
(DINESH MEHTA), J.
Himanshu/-33
