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2012 DIGILAW 827 (RAJ)

Manju v. Ishwar Dan

2012-04-05

KAILASH CHANDRA JOSHI

body2012
JUDGMENT 1. - By this transfer application, the applicant- Smt. Manju is seeking transfer of Civil Misc.Case No.305/2011 filed under Section 9 of the Hindu Marriage Act for restoration of conjugal rights from the Court of Additional District Judge, Barmer to the Family Court, Jodhpur. 2. The short facts of the case are that the marriage of the applicant took place with the non-applicant on 16.5.2010 as per Hindu Custom and Rites at Jodhpur. Differences between the applicant and non-applicant arose soon after the marriage. Therefore, the applicant left the house of the non-applicant and started living at his parental house. The non- applicant filed a petition under Section 9 of the Hindu Marriage Act for restoration of the conjugal rights before the court of Additional District Judge, Barmer. The applicant seeks transfer of that case from the Court of Barmer to Family Court, Jodhpur. 3. The learned counsel for the applicant contended that the applicant is a young lady aged about 26 years and the petition under Section 9 of the Hindu Marriage Act has been instituted by her husband at Barmer, which is about 250 Kms away from Jodhpur. She is feeling inconvenience and insecurity while performing long journey from Jodhpur to Barmer with her mother in connection with attending the Court. It is further contended that after the marriage, the applicant was subjected to cruelty on account of demand of dowry and therefore, the applicant filed a complaint under Section 406, 498-A IPC against the non-applicant at Jodhpur, in which, challan has been filed and trial is pending before the court of Additional Judicial Metropolitan Magistrate No.2, Jodhpur and the respondent is already attending the court in that case. The application filed by the applicant under Section 12 of the Protection of Women from Domestic Violence Act against the non-applicant is also pending before the court of Additional Judicial Metropolitan Magistrate No.3, Jodhpur. Therefore, no inconvenience will be caused to the non-applicant if the application for restoration of the conjugal rights pending before the Additional District Judge, Barmer is transferred to the Family Court Jodhpur. 4. The petition is opposed by the learned counsel for the respondent contending that the convenience of the wife cannot be a sole ground for transferring the case. Therefore, transfer petition is liable to be dismissed. 5. 4. The petition is opposed by the learned counsel for the respondent contending that the convenience of the wife cannot be a sole ground for transferring the case. Therefore, transfer petition is liable to be dismissed. 5. I have considered the submissions of the learned counsel for the parties and perused the facts pleaded in the transfer petition. It has been pleaded in the petition that in addition to inconvenience, she has an apprehension for her security. 6. The Hon'ble Supreme Court, in the case of Sumita Singh v. Kumar Sanjay; (2001) 10 SCC 41 observed that if the case is filed by husband then wife's convenience must be looked at and held that circumstances indicated in the judgment are sufficient to make the transfer petition absolute. It is settled proposition of law that when there is an apprehension to the security of a lady, even if there are rebut all allegations, a case should be transferred from that court where applicant or a lady is feeling inconvenience and insecurity. In view of the settled proposition of law and the aforesaid judgment of the Hon'ble Supreme Court, I deem it just and proper to transfer the case from the Court of Additional District Judge, Barmer to the Family Court, Jodhpur. 7. Accordingly, this transfer application is allowed and the Civil Misc. Case No.305/2011 (Ishwar Dan v. Smt.Manju) pending in the Court of Additional District Judge, Barmer is transferred to the Family Court, Jodhpur. As both the parties are represented by their counsel, therefore, parties are directed to appear before the Family Court, Jodhpur on 7.5.2012. The Judge, Family Court need not to issue fresh notices to the parties. 8. Let a copy of this order be sent to the Additional District Judge, Barmer as also to the Family Court, Jodhpur for necessary compliance.Application Allowed. *******