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Smt.Sanjubai vs Rakesh on 25 July, 2018

HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Misc. Civil Case No.3385 of 2017.
(Smt. Sanjubai w/o Rakesh Talwariya v/s Rakesh s/o Manoharlal Talwariya)

Indore, Dated : 25.07.2018:-
Shri Sunil Verma (Soni), learned counsel for the petitioner.
Shri Manuraj Singh, learned counsel for the Respondent.

Heard on the question of admission.

O R D E R
THE petitioner has filed the present application
under Section 24 of the Code of Civil Procedure, 1908 [in brief
“the Code”] seeking transfer of the proceedings of MJC
No.1/2017 [Rakesh Talwariya v/s Smt. Sanjubai Talwariya]
from the Court of Sessions Judge, Badwani to Family Court at
Indore.

[2] The marriage of petitioner and the Respondent was
solemnized on 20.02.2008 at Village Barda, Tehsil Anjad,
District Badwani under the Hindu customs and rites. Thereafter
the Respondent obtained ex-parte decree of divorce against
which the present petitioner filed First Appeal No.752 of 2016
before this Court. The petitioner has filed petition under Section
12 of the Domestic Violence Act at Indore and the Respondent
is attending the said proceeding at Indore. The Respondent has
filed a petition under Section 25 of the Guardians and Wards
Act, 1890 seeking custody of the child who is at present in the
custody of the present petitioner. The petitioner filed the present
petition seeking transfer of the proceedings from Sessions
Court, Badwani to Family Court, Indore. Under Section 9 of the
Guardians and Wards Act, 1890 there is a specific provision
about the District Court having territorial jurisdiction to
entertain the application in the place where the minor ordinarily
resides. Section 9 of the Act of 1890 is reproduced below :-

“9. Court having jurisdiction to entertain
application.– (1) If the application is with respect to the
guardianship of the person of the minor, it shall be made to
the District Court having jurisdiction in the place where
the minor ordinarily resides.

(2) If the application is with respect to the
guardianship of the property of the minor, it may be made
either to the District Court having jurisdiction in the place
where the minor ordinarily resides or to a District Court
having jurisdiction in a place where he has property.

(3) If an application with respect to the
guardianship of the property of a minor is made to a
District Court other than that having jurisdiction in the
place where the minor ordinarily resides, the Court may
return the application if in its opinion the application
would be disposed of more justly or conveniently by any
other District Court having jurisdiction.”

[3] Admittedly at present the ward is in custody of the
present petitioner, therefore, the proceedings has wrongly been
filed at Badwani. Instead of directing the Respondent to
withdraw the same and file at Indore, it would be proper to
transfer the same proceedings to Family Court at Indore.

[4] In view of the above, the present application is
allowed and MJC No.1/2017 pending in the Court of learned
Sessions Judge, Badwani is transferred to Family Court at
Indore. Parties are directed to appear before the Family Court,
Indore on 30.08.2018.

Application stands allowed.

C.c. as per rules.

[ VIVEK RUSIA ]
JUDGE
(AKS)

Digitally signed by Anl Kumar
Sharma
Date: 2018.07.26 14:28:03 +05’30’

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