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2017 DIGILAW 2464 (RAJ)

Ritu Mishra v. Brijesh Nagar

2017-11-09

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : Virendra Kumar Mathur, J. This Transfer Application under section 24 CPC has been filed for transfer of Case No. 23/2016 (Brijesh Nagar v. Ritu Mishra) filed under section 13 of the Hindu Marriage Act, pending in the court of Additional District Judge No. 1, Abu Road to Family Court, Ajmer. 2. Briefly stated, marriage between the parties was solemnized on 12.11.2009 at Ajmer. Out of the wedlock, one son namely Krishna born on 01.10.2010. Due to ill-treatment and cruelty with the petitioner, she filed a complaint No. 115/2012 under sections 498A, 406 IPC at Women Police Station, Ajmer. In said FIR, after investigation Police has filed challan against the respondent before ACJM No. 2, Ajmer and the court has taken cognizance of the offence against the respondent. 3. It was also contended that the petitioner belongs to middle class family, she is not having any source of income and after leaving her matrimonial home she is presently residing at her father's house situated at Ajmer. She has also filed an application under sections 12 & 18 of the Protection of Women from Domestic Violence Act before the Judicial Magistrate No. 6, Ajmer. The respondent has filed divorce petition under section 13 of the Hindu Marriage Act before the Additional District Judge No. 1, Abu Road. It was also contended that the petitioner belongs to poor family, she has no source of income and presently she is living with his father at Ajmer and is facing hardship and it is very inconvenient for her to travel from Ajmer to Abu Road with her minor child. The respondent has also threatened her to withdraw the criminal case otherwise she has to face dire consequences. The respondent has only intention to harass the petitioner and he had also filed an application under section 9 of the Hindu Marriage Act before court at Palanpur (Gujarat), which was later withdrawn by him on 13.07.2016. 4. Notices issued to the respondent were received duly served. The respondent appeared before this Court through advocate and filed reply, denying allegations of the petitioner. In the reply he contended that it is wrong to say that the petitioner is having no source of income as she is employed in Ajim Premji Foundation at Tonk and getting salary of more than Rs. 45,000/- per month. The respondent appeared before this Court through advocate and filed reply, denying allegations of the petitioner. In the reply he contended that it is wrong to say that the petitioner is having no source of income as she is employed in Ajim Premji Foundation at Tonk and getting salary of more than Rs. 45,000/- per month. The respondent also denied the fact that she is living with her father at Ajmer and also contended that the petitioner is living at hundreds of kilometers distance from Ajmer. He further contended that the respondent is paying Rs. 5000/- per month towards maintenance to the petitioner. 5. Heard learned counsel for the parties. 6. After marriage between the parties, a son namely Krishna born to them on 01.10.2010, who is at present 7 years old. On account of cruelty, the petitioner left her matrimonial home and presently residing with her parents. She had filed a complaint before the Women Police Station, Ajmer bearing No. 115/2012 under sections 498A, 406 IPC, in which case it was stated that the court has taken cognizance against the respondent. It was also submitted on behalf of the petitioner that a case under sections 12 & 18 of the Domestic Violence Act has also been instituted by petitioner against the petitioner, which is pending before Judicial Magistrate No. 6, Ajmer. 7. The respondent is said to be employed with the Indian Railway as TTI. It was argued on behalf of the petitioner that two cases are pending against the respondent in which he has to attend on each & every date at Ajmer. He is employed in the Indian Railway as TTI, therefore also, he has no difficulty in attending courts at Ajmer. 8. The respondent has although denied the fact that the petitioner is having no source of income and stated that she is employed with Ajim Premji Foundation at Tonk and getting salary of Rs. 45,000/- per month but he did not file any document in support of this contention. So far as amount of maintenance as stated to have been paid by the respondent to petitioner to the tune of Rs. 5000/- per month, it was submitted on behalf of the petitioner that this amount of maintenance is for minor child and not for the petitioner wife. So far as amount of maintenance as stated to have been paid by the respondent to petitioner to the tune of Rs. 5000/- per month, it was submitted on behalf of the petitioner that this amount of maintenance is for minor child and not for the petitioner wife. She do not have any independent source of income and it is more inconvenient for her to travel all alone with minor child from Ajmer to Abu Road. Even if it is assumed that the petitioner is living presently at Tonk then also the distance between Tonk and Abu Road is more than distance between Ajmer and Abu Road. 9. In support of his contentions, learned counsel for the petitioner relied on judgments in Archana Singh v. Alok Pratap Singh: (2000) 3 SCC 744 , wherein their Lordships of Supreme Court held that offer to pay travel expenses not adequate to recompense for difficulties which petitioner wife would have to face, more so when she had a small child to look after. 10. The learned counsel for the petitioner has also produced before the Court an order dated 21.12.2016 passed in Mediation Settlement between petitioner and respondent at the Mediation Center, Rajasthan High Court, Jaipur Bench, wherein the respondent Brijesh Nagar and petitioner Smt Ritu Mishra mutually agreed for transfer of the divorce petition from Abu Road to Ajmer. 11. Looking to the facts and circumstances of the case, the inconvenience of the petitioner lady has to be considered. In view of the above and in light of judgment of Hon'ble Supreme Court in Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap reported in 2016 (4) WLN 237 (SC) as well as observation made by their Lordships of the Apex Court in Archana Singh v. Alok Pratap Singh: (2000) 3 SCC 744 , it is a fit case to be transferred. 12. Accordingly, this Transfer Application is allowed and the Case No. 23/2016 Brijesh Nagar v. Ritu Mishra, filed by the respondent under section 13 of the Hindu Marriage Act, pending before the Additional District Judge No. 1, Abu Road is ordered to be transferred to the Family Court, Ajmer.