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2012 DIGILAW 2211 (RAJ)

Anshu Bhatnagar v. Rajendra Bhatnagar

2012-11-19

R.S.CHAUHAN

body2012
ORDER : The petitioner, Anshu Bhatnagar, has filed this transfer application for getting the divorce petition filed by the respondent, Rajendra Bhatnagar, pending in the Family Court, Jodhpur, transferred to the Family Court No.2, Jaipur. 2. Mr. Dhanesh Saraswat, the learned counsel for the petitioner, has pleaded that the marriage between the petitioner and the respondent was solemnized on 2-7-2006 at Jaipur. Ever since then, the parties were residing at Jaipur and presently the petitioner is residing with her elderly parents at Jaipur. Out of the wedlock, a son was born at Jaipur who continues to reside with the petitioner at Jaipur. While the petitioner has filed a criminal case under Section 406 IPC at Jaipur, the respondent has filed a petition under Section 13 Hindu Marriage Act for divorce before the Family Court, Jodhpur. According to the learned counsel, since the petitioner has a small child, aged three and a half years old, and since the petitioner is residing with her elderly parents at Jaipur, she finds it extremely difficult to attend the proceedings at the Family Court at Jodhpur. Hence, her prayer that the divorce petition filed by the respondent before Family Court, Jodhpur be transferred to the Family Court No.2 at Jaipur. 3. On the other hand, Mr. M. K. Trivedi, the learned counsel for the respondent, has vehemently contended that Section 21A of the Hindu Marriage Act deals with power to transfer petitions in certain cases. According to him, the present case does not fall within the scope of Section 21A. Secondly, the High Court situated at Jodhpur is the Principal Seat, while Jaipur has a Bench of the High Court. Jurisdiction of both the Principal Seat and the Bench are well defined. Since the petitioner is seeking a transfer of the case from Jodhpur to Jaipur, the Principal Seat does not have the jurisdiction. Therefore, taking support of Section 23(3) of the CPC, the learned counsel has contended that in fact the transfer application should have been filed at Jaipur and not at Jodhpur. Therefore, according to him, the present application is not even maintainable at the Principal seat at Jodhpur. Thirdly, he has contended that mere inconvenience of the petitioner is not a valid ground for transfer of a case from Jodhpur to Jaipur. According to him, she has relatives even at Jodhpur. Therefore, her inconvenience is more imaginary than real. Therefore, according to him, the present application is not even maintainable at the Principal seat at Jodhpur. Thirdly, he has contended that mere inconvenience of the petitioner is not a valid ground for transfer of a case from Jodhpur to Jaipur. According to him, she has relatives even at Jodhpur. Therefore, her inconvenience is more imaginary than real. Hence, the learned counsel has opposed the prayer made by the petitioner. 4. Section 21A of the Hindu Marriage Act, is as under : (1) Power to transfer petitions in certain cases - Where- (a) a petition under this Act has been presented to a district Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under section 13; and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same district Court or in a different district Court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2). (2) In a case where sub-section (1) applies,- (a) if the petitions are presented to the same district Court, both the petitions shall be tried and heard together by that district Court; (b) if the petitions are presented to different district Courts, the petition presented later shall be transferred to the district Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district Court in which the earlier petition was presented. 5. Section 21A of the Hindu Marriage Act is not even applicable to the present case. For, it is not a case of the respondent that two separate petitions for divorce have been filed one after the other. Section 21A deals with a specific circumstance when two different petitions have been filed at two different places, either within the same district, or in two different districts. Since the provision deals with a specific circumstance, it does not control other conditions/circumstances under which a transfer application may be moved. Thus, Section 21A of the Hindu Marriage Act does not control the power of this Court under Section 24 CPC. Since the provision deals with a specific circumstance, it does not control other conditions/circumstances under which a transfer application may be moved. Thus, Section 21A of the Hindu Marriage Act does not control the power of this Court under Section 24 CPC. Therefore, the first contention raised by the learned counsel for the respondent is without any merit. 6. Even the second contention raised by the learned counsel is bereft of any merit as Section 23(3) deals with a case where the subordinate Courts are subordinate to two different High Courts. Merely because the Rajasthan has a Bench at Jaipur would not bifurcate the High Court and would not divide them into two different High Courts. The High Court continues to be the same although a Bench exists at Jaipur. Therefore, the respondent cannot take the benefit of Section 23(3) CPC. 7. The Court has to be sensitive to the practical difficulties faced by a woman while travelling especially when she happens to be saddled with the responsibilities of looking after a young child. The Court can neither ignore the concept of gender justice, nor ignore the fact that the woman is entitled to seek justice as much as a man. The petitioner has clearly pointed out that she has to look after a child of three and half years and aged parents about 65 years old. It would be too much for a woman to travel with a young child across the State in order to contest the proceedings which has been initiated by the respondent in the Family Court at Jodhpur. Her inaccessibility to the Court at Jodhpur may deprive her of justice. 8. Therefore, it will be in the interest of justice to direct the Family Court, Jodhpur to send the file of Case No. 485/11 to the Famil Court No.2, Jaipur. 9. With these directions, this petition is hereby allowed. Petition allowed.