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Smt. Priyanka vs Praveen on 7 March, 2018

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
(2 of 6)
[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.
(3 of 6)
[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
(4 of 6)
[CTA-156/2017]

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
(5 of 6)
[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
(6 of 6)
[CTA-156/2017]

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

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