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2012 DIGILAW 170 (RAJ)

Kanta Mali v. Suneel Mali

2012-01-17

KAILASH CHANDRA JOSHI

body2012
JUDGMENT 1. - This transfer application filed by Smt. Kanta Mali is against the order dated 01.12.2001 passed by District Judge, Churu in Civil Misc. Case No. 30/2009 whereby the learned District Judge, Churu declined to transfer the case bearing No. 23/2009 from the Court of Additional District Judge, Sujangarh to the Court of District Judge, Churu. 2. The applicant is facing a trial of a divorce petition filed by her husband before the Court of Additional District Judge, Sujangarh. The allegation of the divorce petition is that the marriage between the parties took place on 25.01.2005 and out of their wedlock, a male child Manish was born. It has also been averred that the wife has deserted the petitioner without any reasonable cause. The said divorce petition was listed on 25.07.2009 before the trial Court and it was adjourned to 21.08.2009. On 25.07.2009 the father-in-law of the present applicant threatened her in the Court premises regarding her arrest along with her father, therefore, she filed transfer petition before the Court of District Judge, Churu to get the matter transferred to Churu but the learned District Judge, Churu dismissed the transfer application vide impugned order dated 01.12.2011. 3. The learned counsel for the applicant contended that the learned District Judge, Churu while deciding Civil Misc. Case No. 30/2009 failed to consider this aspect that the applicant is having a male child, namely, Manish, who is about 5 to 6 years old and this fact has not been denied by the non-applicant. Further, the learned counsel for the applicant contended that it has been specifically pleaded in the transfer application that applicant is not the earning member and further pleaded some facts regarding the incident which took place on 25.07.2009. Further, the learned counsel for the applicant contended that it has been specifically pleaded in the transfer application that applicant is not the earning member and further pleaded some facts regarding the incident which took place on 25.07.2009. The learned District Judge while deciding the application recorded its finding that the applicant had not filed any complaint before the police or before the concerned Presiding Officer of the Court regarding any threat or misbehave of her father-in-law and further it has been held that there are several cases pending between the parties and it cannot be said that the applicant is not conscious about her right and merely on the basis of surmises and conjunctures, a case cannot be transferred from one Court to another; but the learned District Judge did not take note of this fact that while attending the Court, the applicant has to bring her minor son from Churu to Sujangarh and further, she is not the earning member and therefore, the order of the learned District Judge requires to be set aside. Learned counsel for the applicant has relied upon the judgments of this Court passed in S.B. Civil Transfer Petition No. 69/1994; Smt. Shakuntla v. Chhaganlal, reported in 1996 DNJ (Raj.) 657 ; S.B. Civil Transfer Application No. 25/1998; Gayatri (Smt.) v. Nand Kumar, reported in 2001 DNJ (Raj.) 64 ; S.B. Civil Misc. Transfer Petition No. 1/2009; Sudesh Agarwal (Smt.) v. Sanjay Gupta, reported in 2009 (3) DNJ (Raj.) 1683 . 4. Per contra, the learned counsel appearing for the non-applicant vehemently defended the impugned order of the learned District Judge, Churu dated 01.12.2011; by which, the application of the applicant was dismissed. 5. I have considered the rival contentions raised by counsel for both the parties and also perused the order passed by the learned District Judge as also the judgments cited by counsel for the applicant. 6. 5. I have considered the rival contentions raised by counsel for both the parties and also perused the order passed by the learned District Judge as also the judgments cited by counsel for the applicant. 6. The learned District Judge while deciding the application took note of a judgment cited by applicant's counsel reported in 2009 (3) DNJ (Raj.) 1426 (Parul Vyas v. Vikas Vyas) wherein this Court held that generally in such cases, the convenience of a lady to be considered and further the security of the lady is an important consideration at the time of deciding such application but the learned District Judge while coming to the conclusion that the allegations regarding the incident dated 25.07.2009 are misconceived and baseless, rejected the transfer application. 7. It is settled proposition of law that when there is an apprehension to the security of a lady, even if there are rebuttal allegations, the case should be transferred from that Court where the applicant or a lady is feeling inconvenience and insecurity. Though there are series of litigation pending between the parties but it is admitted fact that the applicant is having a minor son and further, she is not the earning member. It makes no difference that she is getting expenditure incurred by her while performing her journey because she has to travel long way from Churu to Sujangarh for attending the Court. Further, a perusal of the certified copies of the order-sheets produced by counsel for the applicant reveals that on 25.07.2009, the advocates suspended the work of the Court and on the next date i.e. 21.08.2009, the presiding Officer was on leave. On 25.09.2009, 20.10.2009, 05.12.2009 and 21.11.2009 also, the work remained suspended by the advocates. Though it is admitted fact that the non-applicant husband has to pay the cost of the journey but the applicant is residing at Churu and she has to perform long journey for attending the Court. It is not expected from a lady to initiate the proceedings of any trivial act in the police or to inform the Presiding Officer of the Court and in view of the settled proposition of law and judgment cited by learned counsel for the applicant, I deem it just and proper to transfer the Civil Case No. 23/2009 pending in the Court of Additional District Judge, Sujangarh to District Judge, Churu. 8. Accordingly, this transfer application is allowed. 8. Accordingly, this transfer application is allowed. The impugned order dated 01.12.2011 is set aside and the Civil Case No. 23/2009 pending in the Court of Additional District Judge, Sujangarh is transferred to the Court of District Judge, Churu. As both the parties are represented by their counsel, therefore, parties are directed to appear before the learned District Judge, Churu on 27.02.2012. The District Judge, Churu need not to issue fresh notices to the parties.Let a copy of this order be sent to the Additional District Judge, Sujangarh as also the District Judge, Churu for necessary compliance. *******