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2018 DIGILAW 397 (RAJ)

Laddu Bano v. Mukhtiyar Ali

2018-02-01

DINESH MEHTA

body2018
JUDGMENT Dinesh Mehta, J —Mr. K.K. Bhati, appearing for the respondent, pleads no instructions. 2. Heard on transfer application. 3. The petitioner has preferred the present application under Section 24 of the Code of Civil Procedure, seeking transfer of the Case No. 5/2016 titled as "Mukhtiyar Ali Vs. Smt. Laddu Bano" from Family Court, Bikaner to Family Court, Jodhpur. 4. The petitioner got married with the respondent some 21-22 years ago whereas, her Muklava Ceremony was held some 12-13 years ago. Due to disturbance in the matrimony and altercations between her and her husband, she was constrained to come to Jodhpur to live with her parents. According to the petitioner, she is living with her widow mother and three children, as her father had expired few years back. 5. The petitioner has filed a case under Sections 18, 19, 10 & 12 of the Domestic Violence Act against her husband, which is pending before learned Metropolitan Magistrate No. 10, Jodhpur. As a counter-blast to this, the respondent-husband has filed a petition under Section 281 of the Muslim Personal Law for restitution of conjugal rights at Bikaner. 6. Learned counsel for the petitioner submitted that it is a burden-some task for the petitioner to attend the hearing at Bikaner, so lodged by the respondent-husband. The journey upto Bikaner which is about 240 kms. is not only tire-some but tedious also, as it involves time and cost both. 7. In the facts and circumstances of the case, this Court deems it expedient and in the interest of justice to transfer the said case from Bikaner to Jodhpur. 8. If the facts of the present case are considered in its entirety coupled with the judgment of this Court, in the case of Smt. Vinita Vs. Himanshu , (2017) AIR(Rajasthan) 102, wherein most of the judgments on the issue have been dealt with; reached to a conclusion that the application deserves to be allowed. It will not be out of context to quote relevant excerpts from the judgment of Smt.Vinita Vs. Himanshu , wherein this Court has held as under:- "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. Himanshu , wherein this Court has held as under:- "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. 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. 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." 9. In view of the facts obtaining and discussion foregoing, this Court deems it appropriate, expedient and also in the interest of justice to withdraw Case No. 5/2016 titled as "Mukhtiyar Ali Vs. Laddu Bano" from Family Court, Bikaner with a view to transfer it to Family Court, Jodhpur. 10. Ordered accordingly. 11. A copy of this order be sent to the concerned Courts for information and for facilitating transmission of the record. 12. Transfer Petition stands allowed.