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Uma Devi vs Viond Kumar on 19 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Transfer Application No. 147 / 2017.
Uma Devi W/o Shri Vinod Kumar, D/o Shri Moti Ram, Aged About

34 Years, By Caste Vaishnav, R/o Dorda, Tehsil Jaswant Pura,

District Jalore, Presently R/o New Mahavir Colony, Sumerpur,

Tehsil Sumerpur, District Pali. (………..Wife)

—-Petitioner

Versus

Vinod Kumar S/o Shri Jagdish Das, Aged About 37 Years, By Caste

Vaishnav, R/o Dorda, Tehsil Jaswant Pura, District Jalore, Presently

R/o Sheetal Apartment, a Wing, 401 Khaugalli, Bhayander (West)

District Thane, Maharashtra. (………Husband)

—-Respondent

__
For Petitioner(s) : Mr. Ramesh Purohit.
For Respondent(s) : None present.
__
JUSTICE DINESH MEHTA
Order
19/04/2018

Despite service of notice, nobody has put in appearance on

behalf of the respondent-husband.

The present transfer application under Section 24 of the

Code of Civil Procedure, 1908, seeking transfer of the Divorce

Petition (No. 52/2014 titled as ” Vinod Vaishnav Vs. Smt. Uma)

under Section 13 of the Hindu Marriage Act, filed by the
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[CTA-147/2017]

respondent-husband, which is pending before Additional District

Judge, Bhinmal to the competent Court at Sumerpur.

Mr. Ramesh Purohit, learned counsel for the petitioner-wife,

narrating the facts relevant for the purpose of deciding the

present transfer application, submitted that the petitioner got

married with the respondent on 27.02.2009, after observing the

customs and rituals prevailing in Hindus. However, her

matrimonial relationship with the respondent-husband could not

go smoothly, in wake of ill-treatment meted out to her by the

respondent-husband, for which, she has come to Sumerpur to live

with her parents.

The petitioner has filed a case under Section 12 read with

Sections 18, 19, 20, 22 and 23 of the Protection from Domestic

Violence Act against the respondent-husband in the Court of

competent jurisdiction, which is pending adjudication before

Judicial Magistrate, First Class, Sumerpur, District Pali. In the

meanwhile, the respondent-husband has filed a petition for

divorce under Section 13 of the Hindu Marriage Act before the

Additional District Judge, Bhinmal.

Mr. Ramesh Purohit, learned counsel for the petitioner

submitted that the petitioner finds it difficult and troublesome to

travel to Bhinmal, which is about 150 kms. from Sumerpur, as

there is absence of proper means of communication and she

needs a male companion for attending the hearing at Bhinmal.

Mr. Purohit further contended that the respondent-husband, who is

presently residing at Bhaiendar, District Thane (Maharashtra) has

to take journey, either to Bhinmal or to Sumerpur to pursue the
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[CTA-147/2017]

present cases. In view of these facts, Mr. Purohit contended that

it would be proper, in the interest of justice and convenient to all

concerned, if the matter (Divorce Petition No. 52/2014) is

transferred to a competent Court at Sumerpur.

In the fact situation obtaining in the present case, I am of

the considered view that, if the matter is transferred to Sumerpur

from Bhinmal, it would be not only convenient to the petitioner-

wife but also to the respondent-husband, who is already

contesting a case filed by the petitioner-wife at Sumerpur.

My aforesaid views are fortified from the judgment rendered

by this Court in the case of Smt. Vinita Vs. Himanshu, reported

in AIR 2017 Rajasthan 102.

It will not be out of context to quote relevant excerpts from

the judgment of Smt. Vinita Vs. Himanshu (supra), wherein this

Court has held as under:-

“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
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[CTA-147/2017]

imprisoned or bound within a 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
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[CTA-147/2017]

while deciding a Transfer Petition. Suffice it to say,

that in the present case, it is not the distance alone for

which this Court finds that it would be convenient for

the petitioner-wife to defend the case in question at

Bhilwara instead of Chittorgarh. There are other

surrounding circumstances stated above, for which

this Court feels it appropriate to transfer the case to

the court at Bhilwara.”

In view of the discussions aforesaid, the Case No. 52/2014

titled as “Vinod Vaishnav Vs. Smt. Uma” is withdrawn from the

Additional District Judge, Bhinmal to be transferred to Additional

District Judge, Sumerpur.

A copy of this order be sent to the respondent-husband, and

both the Courts concerned for information and facilitating

transmission of the record.

The Transfer Application is allowed, as indicated above.

(DINESH MEHTA), J.

/Mohan/26

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