Reen Nayak D/o Late Shri Babu Lal Ji Nayak v. Dilip Kumar Nayak Son of Shri Kalu Ram Nayak
2018-01-23
DINESH MEHTA
body2018
DigiLaw.ai
ORDER : Dinesh Mehta, J. 1. The present transfer application under Section 24 of the Code of Civil Procedure has been filed by the applicant seeking transfer of the Case No. 25/2017 tilted as "Dilip Kumar Nayak v. Smt. Reenu Nayak" from Additional District Judge No. 1, Beawar to the Family Court, Bhilwara. 2. Bringing out the difficulty of the applicant, Mr. Gurjar, learned counsel for the petitioner submitted that the petitioner married the respondent on 19.05.2015 soon whereafter, owing to the strain in the matrimony, she started living with her parents at Bhilwara. 3. He further submitted that the petitioner has filed three cases against the respondent - husband at Bhilwara, first case being a case under Section 23 of the Protection of Women from Domestic Violence Act, second being case for maintenance filed under Section 125 Cr. P.C. and the third case being under Section 498-A IPC. 4. Learned counsel submitted that meanwhile respondent - husband has filed a case under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights at Beawar. 5. Learned counsel for the petitioner submits that at present respondent is residing and serving in Kota for whom participation in the proceeding at Bhilwara would be more convenient as he is already contesting the aforesaid three cases filed by the petitioner at Bhilwara. He further added that it is troublesome for the petitioner to go to Beawar to attend the proceedings with her one year old son. 6. Mr. Abhishek Mirdha, learned counsel appearing for the respondent - husband vehemently opposed the request for transferring the case from Beawar to Bhilwara and submitted that the respondent wishes to resuscitate his marriage which would be facilitated if the petitioner comes to Beawar, where his parents reside and takes part in the proceedings. 7. He further submitted that a case should not be transferred merely because of the convenience of the wife and for financial burden upon her. 8. Having heard learned counsel for the parties, in the facts and circumstances obtaining in the present case, this Court is of the considered opinion that it would be expedient and in the interest of justice to transfer the case from Additional District Judge, Beawar to learned Family Court, Bhilwara as respondent - husband in already contesting three cases in Bhilwara and presently he is working at Kota, having better connectivity to Bhilwara. 9.
9. My aforesaid views are fortified by the judgment rendered by this Court in case of Smt. Vinita v. Himanshu, reported in AIR 2017 Raj 102 , relevant part whereof is being reproduced hereunder :- "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. 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 castiron 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. 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. 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." 10.
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." 10. In view of the aforesaid, this Court orders that the Case No. 25/2017 tilted as "Dilip Kumar Nayak v. Smt. Reenu Nayak" be withdrawn from Additional District Judge, Beawar and transferred to learned Family Court, Bhilwara for further proceedings. 11. Learned counsel for both the parties shall inform their respective parties, to appear in the Family Court, Bhilwara on 14.02.2018. 12. A Copy of this order be sent to Additional District Judge, Beawar as well as Family Court, Bhilwara for information and transmission of record. 13. The present transfer application stands allowed.