HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. Civil Transfer Appl. No. 69 / 2017
Smt. Riya Choudhary W/o Shri Krishnu Beniwal D/o Shri
Ramswaroop Choudhary, Aged About 33 Years, By Caste Jat,
Resident of 92-A, Shyam Path, Nemi Sagar, Vaishali, Jaipur (Raj.).
Sh. Krishanu Beniwal S/o Sh. Kailash Choudhary, Aged About 32
Years, By Caste Jat, R/o 64, Nehru Park, Sardarpur, Jodhpur, At
Present 227/17E, Chopasani Housing Board, Jodhpur (Raj.).
For Petitioner(s) : Mr Anuj Sahlot
For Respondent(s) : Mr Amandeep Lamba
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
This Transfer Application under sec.24 CPC has been filed for
transfer of Civil Misc. Case No.736/2016- Krishanu Beniwal v. Smt
Riya Choudhary, filed by the respondent under sec.13 of the Hindu
Marrriage Act before the Family Court No.1, Jodhpur Metropolitan
to the Family Court No.1, Jaipur Metropolitan.
Briefly stated, marriage of the parties was solemnized on
22.04.2015 at Jaipur. After the marriage, the respondent and his
relatives used to subject the petitioner to cruelty and harassment
for dowry, for which an FIR was lodged by petitioner under
secs.498A 406 IPC against the respondent and his family
members on 20.01.2017 at Mahila Police Station, Jaipur (West).
On 02.02.2017, the petitioner also filed a petition under sec.125
CrPC for maintenance against the respondent in the Family Court
(2 of 5)
No.1, Jaipur, which was registered as Case No.190/2017. A
complaint under sec.12 of the Domestic Violence Act was also filed
by the petitioner against respondent and his family members in
the court of Metropolitan Magistrate No.14, Jaipur. Further, a
petition under sec.9 of the Hindu Marriage Act was filed by the
petitioner on 18.03.2017 for restitution of conjugal rights in the
Family Court No.1, Jaipur Metropolitan. In counter blast, a divorce
petition under sec.13 of the Hindu Marriage Act was filed by the
respondent in the Family Court No.1, Jodhpur Metropolitan. On
these facts, transfer of the divorce petition filed by the
respondent, pending before Family Judge No.1, Jodhpur
Metropolitan to the Family Court No.1, Jaipur has been sought.
It was contended that the petitioner is a young lady and
quite unable to travel alone from Jaipur to Jodhpur, which is about
350 kms away from her home. There is no one to accompany her
and looking to past behaviour and treatment of respondent and
his family, there remains a reasonable fear or apprehension of
being beaten or injured by them if she goes to Jodhpur; whereas,
if the aforesaid divorce petition is transferred from Jodhpur to
Jaipur, the respondent will face no inconvenience and hardship, as
the respondent is already attending courts at Jaipur in Criminal
Case under secs.498A, 406 IPC (No.23/2017) registered at Mahila
Police Station, Jaipur (West), Jaipur, Cr. Misc. Case No.190/2017
under sec.125 CrPC which is pending before Family Court No.1,
Jaipur and Case No.06/2017 under sec.12 of the Domestic
Violence Act pending in the court of Metropolitan Magistrate
No.14, Jaipur; apart from Case No.576/17 under sec.9 of the
(3 of 5)
Hindu Marriage Act filed by petitioner, pending before the Family
Court No.1, Jaipur Metropolitan.
A reply to the Transfer Application on behalf of the
respondent has been filed and the averments of the transfer
petition are denied. It is asserted that the petition under sec.13 of
the Hindu Marriage Act, filed by the respondent, was not in
counter-blast but the petitioner left house of the respondent
without any cause. The allegations levelled by the petitioner are
false and baseless with regard to harassment or demand of dowry
and subjecting her to cruelty.
It was also mentioned that the respondent met with an
accident in the month of August 2014, due to which his leg
fractured and after surgery, a rod wasfixed in the leg. The
respondent can perform his daily routine, however, it is very
cumbersome for him to do journey every now then.
Heard learned counsel for the parties.
It is admitted position that a criminal case under sec.498A
406 IPC and the petition filed by the petitioner under sec.12 of the
Domestic Violence Act are pending against the respondent at
Jaipur and further, an application under sec.125 CrPC for granting
maintenance and petition filed under sec.9 of the Hindu Marriage
Act by the petitioner are also pending before the Family Court
No.1, Jaipur Metropolitan. In all these cases, the respondent is
attending hearing before courts at Jaipur. Only one case, filed by
the respondent under sec.13 of the Hindu Marriage Act, is pending
before the Family Judge No.1, Jodhpur Metropolitan.
The respondent has submitted that he met with an accident
(4 of 5)
and on account of the accident, he has suffered fracture in his leg
and a rod was fixed in the leg but no medical certificate or any
other relevant document was filed before the court. In support of
his contentions, the respondent has filed judgment in S.B. Civil
Transfer Petition No.120/2015 (Smt Heena Panchal v.
Harshad Panchal) decided on 08th August 2016 and also
judgment reported in 2013(1) DNJ (Raj) 84: Dimple Soni
(Smt) v. Praven Kumar.
Learned counsel for the petitioner submitted that when other
proceedings between the parties are already pending at Jaipur
then there is no reason why the Divorce petition filed by the
respondent at Jodhpur be not transferred to Jaipur. In support of
his contentions, he relied on judgment reported in (2016) 3 SCC
69: Tejalben v. Mihirbhai Bharatbhai Kothari, 2009(3) DNJ
(Raj) 1483: Aketa (Smt) v. Anurag Joshi and 2009(3) DNJ
(Raj) 1683: Sudesh Agarwal (Smt) v. Sanjay Gupta.
Perused the judgments cited by the learned counsel from
both sides. The Apex Court in Tejalben v. Mihirbhai Bharatbhai
Kothari (supra) held that where other proceedings between the
parties are pending, there is no reason why divorce case be not
transferred to that place.
In the present case, it is admitted position that 3 cases
between the parties are pending at Jaipur. Then there is no reason
why the divorce petition pending before the Family Judge No.1,
Jodhpur Metropolitan be no transferred to the Family Court at
Jaipur Metropolitan. It is very inconvenient for a lady to travel all
alone from Jaipur to Jodhpur, especially when she does not have
(5 of 5)
any independent source of income. In the facts and circumstances
of the present case, considering the hardship of the applicant lady,
in view of the ratio laid down by Hon’ble Supreme Court in
Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap
reported in 2016 (4) WLN 237 (SC), it is a fit case to be
Accordingly, this Transfer Application is allowed and the Civil
Misc. Case No.736/2016 (Krishanu Beniwal v. Smt Riya
Choudhary), filed by the respondent for under sec.13 of the Hindu
Marriage Act, pending before the Family Court No.1, Jodhpur
Metropolitan is ordered to be transferred to the Family Court No.1,
(DR. VIRENDRA KUMAR MATHUR), J.