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2018 DIGILAW 400 (RAJ)

Preeti Sharma v. Pankaj Khandelwal

2018-02-01

DINESH MEHTA

body2018
JUDGMENT Dinesh Mehta, J —The present application under Section 24 of the Code of Civil Procedure has been filed by the petitioner, seeking transfer of Matrimonial Case No. 85/2016 titled as "Pankaj Khandelwal Vs. Smt. Preeti Sharma" from Family Court, Banswara to Family Court, Nagaur. 2. Mr. Kaushal Sharma, learned counsel for the petitioner briefly stating the facts relevant for adjudication of the present transfer petitioner, submitted that the petitioner married with the respondent on 01.02.2013 as per the Hindu Rituals, however, due to certain reasons, her relations with the respondent got strained for which, she has returned back to her parents house to live with them at Kuchaman City, along with her 3 years old son. 3. The petitioner has instituted three cases against the respondent-husband, (i) for maintenance under Section 125 Cr.P.C., (ii) Domestic Violence and (iii) under Sections 498-A and 307 of the Indian Penal Code for dowry and other attempt to murder. 4. In the meanwhile, the respondent-husband has filed the said Case No. 85/2016 in the Family Court at Banswara under Section 13 of the Hindu Marriage Act for dissolution of marriage. 5. Learned counsel for the petitioner contended that it is an arduous task for her to go all the way to Banswara to participate in the said proceedings, as Banswara is around 600 kilometers away from Kuchaman City. He submitted that the petitioner has to carry with her, her 3 years old son apart from one male companion, which takes at least three days journey and cost of comnutation. 6. In the facts of the present case, this Court is of the firm view that the case pending in Family Court, Banswara is required to be transfer to Court at Kuchaman/Nagaur. 7. My aforesaid views are fortified by the judgment rendered by this Court in the case of Smt. Vinita Vs. Himanshu , (2017) AIR(Rajasthan) 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. 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. There are other surrounding circumstances stated above, for which this Court feels it appropriate to transfer the case to the court at Bhilwara." 8. 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. 85/2016 titled as "Pankaj Khandelwal Vs. There are other surrounding circumstances stated above, for which this Court feels it appropriate to transfer the case to the court at Bhilwara." 8. 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. 85/2016 titled as "Pankaj Khandelwal Vs. Smt. Preeti Sharma" from Family Court, Banswara with a view to transfer it to Family Court, Nagaur. 9. Ordered accordingly. 10. Both the parties shall appear before the Family Court at Nagaur on 20.02.2018. It will be required of the learned counsels for the parties to inform their respective clients. 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.