Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 702 (RAJ)

PRIYANKA v. PRAVEEN

2018-03-07

DINESH MEHTA

body2018
JUDGMENT/ORDER : Dinesh Mehta, J. The petitioner has preferred the present application under Section 24 of the Code of Civil Procedure, seeking transfer of Case No.11/2016, titled as "Parveen Vs. Smt. Priyanka" from the Court of learned Additional District & Sessions Judge, Sagwara, Dungarpur to Family Court No.1, Udaipur. 2. Briefly stated the facts pertinent to the present case are that the petitioner married with the respondent on 15.05.2009 as per Hindu rituals. After their marriage, certain dispute arose between them, which spoiled the relations, compelling the petitioner to file two cases under Section 498A of IPC and under Section 12 of Protection of Women from Domestic Violence Act, 2005. 3. The said cases were filed at Sagwara, when the petitioner was living with her husband. After some time the petitioner had come to her parents' house at Udaipur, in a quest of a peaceful life. In the meanwhile, respondent husband has filed an application under Section 13 of the Hindu Marriage Act, seeking decree of divorce. Respondent has filed the same before Additional District & Sessions Judge, Sagwara. 4. Mr. M.C. Bishnoi, learned counsel for the petitioner submitted that the petitioner is a mentally disturbed and challenged lady, for whom attending the hearing at Sagwara is a daunting task. Traveling to Sagwara, which is about 150 k.m. from Udaipur is tedious looking to the petitioner's condition, as she needs to be accompanied by some adult member of the family for attending the hearing at Sagwara. 5. Mr. Rakesh Matoria, learned counsel for the respondent, while inviting the attention of this Court towards a bona fide residence certificate dated 25.11.2002, submitted that the petitioner is a permanent resident of Dungarpur, and that the petitioner had filed two cases under Sections 498-A, 323 & 406 of IPC before the ACJM, Sagwara and similarly the case of the domestic violence has also been also filed at Sagwara. 6. Mr. Matoria, asserted that the petitioner is temporarily residing at Udaipur and she wants to get the matter transferred to Udaipur only with a view to harass the respondent and to satisfy her whims. 7. He added that out of the two cases mentioned above, one is still pending, in which the petitioner has not made any efforts of getting it transferred. 8. I have heard learned counsel for the parties and perused the material available on record. 9. 7. He added that out of the two cases mentioned above, one is still pending, in which the petitioner has not made any efforts of getting it transferred. 8. I have heard learned counsel for the parties and perused the material available on record. 9. A perusal of the application under Section 13 of the Hindu Marriage Act filed by the respondent husband unravels that the respondent himself has shown petitioner's address as "near New Pasharvnath Complex, House No.53, District Udaipur". 10. Hence, the petitioner's assertion that she is presently residing with her parents at Udaipur, does not need any further probe or deliberation. In other words, the respondent husband himself admits that the petitioner is residing at Udaipur. 11. As far as, other two cases filed by the petitioner are concerned, the same had been filed on 31.03.2015 and 11.04.2016 respectively, when the petitioner was residing at Sagwara, whereafter she had come to live with her parents at Udaipur. 12. The mere fact that the petitioner had filed two criminal cases in Sagwara, while she was living there, cannot be used as a tool to stall her attempt/efforts of getting the case transferred to Udaipur, as the petitioner is not residing at Sagwara any more. 13. Mr. Matoria, appearing for respondent has cited an order dated 12.05.2017 passed by this Court in Civil Transfer Application No.43/2017 titled as "Smt. Rakhi Sharma vs. Mukesh Sharma" to buttress his submission. 14. A perusal of the said judgment and facts narrating therein reveal that in that case the petitioner wife, despite being a resident of Pali had shown her temporary address of Jodhpur and tried to get the matter transferred to Jodhpur, which prayer was negated by this Court. 15. The facts of the present case are entirely different, inasmuch as the petitioner has not projected a wrong temporary address, and she as a matter of fact is residing with her parents at Udaipur. This fact has been admitted by the respondent husband and the same is duly reflected in the petitioner's application under Section 13 filed by him. 16. In this view of the matter, this Court does not find any substance in the argument of Mr. Matoria that the petitioner has given her temporary address at Udaipur just with a view to get the matter transferred. 17. 16. In this view of the matter, this Court does not find any substance in the argument of Mr. Matoria that the petitioner has given her temporary address at Udaipur just with a view to get the matter transferred. 17. In this view of the matter, I am of the considered view, taking stock of overall fact-situation it will be in the interest of justice and expedient to transfer the case in question to Udaipur else the petitioner wife will be put to great hardship, which she is otherwise suffering on account of her mental health. 18. My aforesaid views are based on the judgment rendered by this Court in 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, 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. 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." 19. Looking to the overall factual backdrop, more particularly; as petitioner is reported to be mentally disturbed, this Court deems it appropriate to withdraw the Case No.11/2016 titled as "Parveen Vs. Smt. Priyanka" from the Court of learned Additional District & Sessions Judge, Sagwara, Dungarpur and transfer the same to the Family Court No.1, Udaipur. 20. Learned counsel for the rival parties shall inform their respective parties to appear before the Family Court No.1, Udaipur on 10.04.2018. 21. A copy of this order be sent to Family Court No.1, Udaipur as well as Additional District & Sessions Judge, Sagwara, District Dungarpur for information and transmission of record. 22. The transfer application stands allowed.