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2017 DIGILAW 943 (RAJ)

Vinita w/o Shri. Himanshu Agarwal v. Himanshu s/o Shri Bhanwar Lalji Agarwal

2017-04-11

DINESH MEHTA

body2017
JUDGMENT : 1. Avoiding the unwarranted details, the facts germane to the adjudication of the present Transfer Application in a nutshell are that the marriage of petitioner Smt Vinita and respondent Himanshu was solemnized on 01st May 2004 at Pindwara, District Sirohi. 2. Two children, namely Krishna Gopal and Govind Gopal, born out of their wedlock. Getting along for some time, there arose some differences and disputes between the two, due to which the petitioner has been allegedly scooped out of the house by respondent. Petitioner, thus, started living with her paternal aunt (Bhua) at Gangapur, Bhilwara. 3. Faced with such situation, petitioner filed an application under Section 13 of the Hindu Marriage Act, 1955 {herein after ‘the Act of 1955’} on 08.04.2013 in Family Court, Bhilwara, seeking dissolution of the marriage. 4. The petitioner also lodged an FIR under Sections 498A, 406, 323 and 452 of the Indian Penal Code, being aggrieved of the demand of dowry and cruelty meted to her by the respondenthusband. The investigation in the FIR and the proceedings in aforesaid application under sec.13 of the Act of 1955, filed by the petitioner, are continuing by the competent courts at Bhilwara. 5. In the meanwhile, the respondent-husband filed an application under Section 9 of the Act of 1955, seeking restitution of conjugal rights, at Chittorgarh in Family Court. Said case, filed on 19.09.2013, has been registered as Case No.738/2013. 6. Upon receipt of the notices of the aforesaid case from the Family Court, Chittorgarh, the petitioner appeared and submitted that since she has moved an application for transfer of the case to Bhilwara, the proceedings may be kept in abeyance. 7. This is how the present Transfer Application filed by the petitioner has come up for consideration before this Court. 8. While issuing notices of the present Transfer Application on 10.02.2014, this Court had stayed further proceedings in aforesaid Case No.738/2013, pending before the Family Court, Chittorgarh. 9. Mr Sandeep Saruparia, learned counsel for the petitioner stated that two cases filed by the petitioner, mentioned above, namely the application for divorce under Section 13 of the Act of 1955 as well as the criminal case pursuant to the FIR lodged by the petitioner, are pending in courts of Bhilwara; the petitioner is having two young children, aged 4 years and 2 years, residing with her at Gangapur. Considering these facts, he contended that it would be very difficult for the petitioner to attend the proceedings before the Family Court at Chittorgarh, which is about 100 kms from Gangapur. 10. In support of his arguments, Mr Saruparia referred to judgments of the Supreme Court, reported in AIR 2000 SC 3403 – Ravindra Kaur v. Hitendra Singh, AIR 2000 SC 3405 - Renu Gautam v. Vinod Gautam, AIR 2013 Raj 28 - Anshu Bhatnagar v. Rajendra Bhatnaga and AIR 2002 SC 396 – Sumita Singh v. Kumar Sanjay and submitted that in identical fact situations, the courts have ordered transfer of the case looking to convenience of the wife and pendency of the cases at a particular place. 11. Per contra, Mr Abhinav Jain, appearing for the respondent husband, contended that merely because the distance of the court where the proceedings are continuing is far from the place of residence of the wife, a case can not be transferred. In support of his contention, he cited judgment of this Court in the case of Uma Dwivedi (Smt) v. Nilaksh Dwivedi, reported in 2015 (4) DNJ (Raj) 1766 and judgment of the Supreme Court rendered in the case of Anindita Das v. Shrijit Das reported in 2006 (9) SCC 197 . 12. I have heard learned counsel for the parties and perused the judgments cited by the counsels from both the sides. 13. On perusal of the judgments cited by the rival parties, I find that all the above referred judgments are based on the facts of the individual case. 14. 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. 15. Section 24 of the Code confers powers upon High Court to transfer a case from one court to the other, at any stage, if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for exercise of powers under this Section is essentially, expediency and the demand of ends of justice, based upon analysis of the facts & circumstances of each case. 16. The cardinal principle for exercise of powers under this Section is essentially, expediency and the demand of ends of justice, based upon analysis of the facts & circumstances of each case. 16. It is true that if more than one court have jurisdiction to try a suit or application, the plaintiff as dominus litis, has a right to choose the court or forum and the defendant can not generally assert that the suit or proceedings be tried at any particular Court or Tribunal convenient to him. Cases are not unknown, where a party seeking justice chooses a forum most inconvenient to the adversary, with a view to deprive the other party a fair chance or right to defend his cause. Such attempt can be actuated by plethora of reasons; namely, distance, political or social clout and monetary factors. 17. 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 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. 18. 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. 19. Needless to say that they are all illustrative in nature and not exhaustive. These few factors are some of the aspects, germane in considering the question of transfer of a suit, appeal or other proceedings. 19. Needless to say that they are all illustrative in nature and not exhaustive. If on the above relevant consideration, the court feels that the plaintiff or defendant is not likely to have a fair trial in the court from which he seeks to transfer the case, it is not only the power but also a duty of the court to pass such order. 20. It has been consistent, rather a usual practice of the courts to lean in favour of the wife and the courts have been guided by the convenience, cause and comfort of the wife, which off-late is being questioned and opposed by the husband. As such, it would not be proper to transfer each case, merely on the askance of the wife, of her rather ostensible convenience and/or inconvenience. 21. With a view to come to a definite conclusion, it would be apt to glance through the relevant provisions of the Hindu Marriage Act, regarding jurisdiction of the court for trying the application and cases filed under the Act of 1955. In this regard, Sections 19 and 21-A of the Act of 1955 are relevant, which are reproduced below for ready reference: 19. Court to which petition should be made.- Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction— (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. Jurisdiction of the Court If a marriage is solemnized at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. Jurisdiction of the Court If a marriage is solemnized at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation. 21A. Power to transfer petitions in certain cases. — (1) 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. (3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. 22. 22. A perusal of Section 19 of the Act of 1955 shows that the Act mandates every petition under this Act should be presented to the District Court, having original civil jurisdiction, based on certain relevant events/factors, such as the place where the marriage was solemnized, place where the respondent at the time of presentation of the petition resides, the couple used to reside immediately prior to the separation or the accrual of the cause of action, in case of wife being petitioner, the place of her residence etc. 23. In the same line, Section 21A, which deals with the power to transfer petitions in certain cases, provides that if the petitions are presented to different District courts, the petition presented at later point of time 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. 24. In view of the mandatory statutory provisions, the application filed by the respondent for restitution of conjugal rights, filed on 19.09.2013, was firstly required to be filed at Bhilwara, in view of provisions contained in clause (ii) of Section 19, inasmuch as from defendant’s averments in the application under consideration, the petitioner-wife has been living at Gangapur. The factum of petitioner residing at Gangapur has been accepted in the reply to the application filed by respondent-husband, in response to paragraphs 4 and 5 of the Application under Section 13 filed by the petitioner. 25. Apart from the above, it is undisputed that the petitoner had filed an application under Section 13 of the Hindu Marriage Act on 08.04.2013 in Bhilwara, whereas said application filed by the Husband under Section 9 of the Act of 1955 has been filed on 19.09.2013; as such, keeping in mind the mandate of Section 21- A(2)(a), the Application at hand is required to be tried at District Court, Bhilwara where petitioner’s Application under Section 13 has been filed prior in time. 26. Now adverting to the other aspects, viz. 26. Now adverting to the other aspects, viz. criteria of convenience of parties, which has been held to be relevant and germane by the courts, this Court after conspectus of the factual matrix of the case is of the considered opinion that for the petitioner, having two children aged 4 years and 2 years, it would be inconvenient to take up the journey to Chittorgarh for defending the present case filed by the respondent-husband. 27. In the present factual backdrop, there is yet another factor having necessary bearing on adjudication of the Transfer Application, which one way or the other falls within facet of comparative hardship or convenience viz. the parties are already engaged in two cases in Bhilwara itself, and as such, it would be expedient and in the interest of justice also that the Application in question (Case No.738/2013), for which the defendant has opened a new front at Chittorgarh, is also brought within the territory of Bhilwara. 28. Mr Abhinav Jain has cited judgment of this Court in Uma Dwivedi (supra) in support of his argument that, firstly, distance of 60-100 kilometers is not a substantial distance requiring transfer of a case; secondly, mere distance is not a factor, for which a case should be and can be transferred. 29. 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 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. 30. In view of the above factual and legal backdrop, this Court feels it expedient and in the interest of justice and hence, ordain that Case No.738/2013 pending in the Family Court, Chittogarh be withdrawn and transferred to the Family Court, Bhilwara. 31. 30. In view of the above factual and legal backdrop, this Court feels it expedient and in the interest of justice and hence, ordain that Case No.738/2013 pending in the Family Court, Chittogarh be withdrawn and transferred to the Family Court, Bhilwara. 31. A copy of this order be sent to the transferor and transferee courts, namely, the Family Court, Chittorgarh as well as to the Family Court, Bhilwara, so as to facilitate transmission of record. Needless to say that the Family Court, Bhilwara shall issue notice to the respective parties, fixing date of their appearance before it. The Transfer Application is allowed.