Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 2015 (RAJ)

Khurshida Banu v. Khurshid Khan

2021-10-23

RAMESHWAR VYAS

body2021
JUDGMENT Rameshwar Vyas, J. - The instant transfer application under Section 24 of the Code of Civil Procedure, 1908 has been preferred by the applicant-wife seeking transfer of the divorce petition filed under Section 13 of the Hindu Marriage Act, 1955 (afterwards referred to as "the Act of 1955"), by the non-applicant-husband bearing Divorce Petition No. 38/2021 (Reg. No. 02/2021) titled as "Khurshid Khan Vs. Khurshida Banu" from the Family Court, Jalore to Additional District Judge No. 1, Barmer. 2. Brief facts of the case are that the marriage between applicant and non-applicant was solemnized on 09.10.2009 at Barmer in accordance with Muslim rites; out of their wedlock, two sons viz. Tofique Mohammad and Mohammad Tejib were born, who are now aged 8 and 5 years, respectively. As per the averments made in the transfer application, non-applicant- husband treated applicant-wife with cruelty, for which, the applicant has lodged an F.I.R. No. 56/2021 at Police Station Mahila Thana, Barmer for the offences under Sections 498-A, 406 & 323 I.P.C. and Sections 3 & 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019 against the non-applicant and his family members. She has also moved an application under Section 125 Cr.P.C. before the Court of Chief Judicial Magistrate, Barmer. The applicant has no option but to live in her parent?s house at Barmer along with her children. Non-applicant has filed a divorce petition against the applicant in the Family Court, Jalore. Applicant has preferred this application seeking transfer of the divorce petition filed by the non-applicant from the Family Court, Jalore to the Court of Additional District Judge No. 1, Barmer on the following grounds :- 1. The criminal case and the application under Section 125 Cr.P.C. filed by applicant against non-applicant are already pending in the Courts at Barmer 2. Applicant is a lady having two minor children. Her parents are aged. Applicant is not only required to discharge her duties at Barmer but has to look after her minor sons and there is no other male member in the family except her father, who can travel with the applicant from Barmer to 4. It is highly inconvenient for the applicant to attend the Court proceedings at Jalore. Non-applicant ? husband did not choose to file reply to the transfer application. Heard learned counsel for the parties and perused the material on record. 3. It is highly inconvenient for the applicant to attend the Court proceedings at Jalore. Non-applicant ? husband did not choose to file reply to the transfer application. Heard learned counsel for the parties and perused the material on record. 3. From perusal of the record, it reveals that non-applicant has filed the divorce petition against applicant on the ground that his wife treated him and his parents with cruelty. Applicant went to her parent?s house in the year 2013 and did not return back. She along with her sons and ornaments left her in-laws house in December, 2015 and thereafter she lodged an F.I.R. No. 7/2016 with the false allegations against him, in which non-applicant was acquitted by the competent court on 15.02.2020. Non-applicant has no option but to file the divorce petition against applicant-wife as she has deserted him. 4. In the present case, it is not in dispute that two children born out of the wedlock of the parties are presently residing with applicant-wife, who is a lady and living with her parents at Barmer. It has not been shown by the non-applicant that applicant is earning any income. It would be in the interest of both the parties that their matrimonial dispute is settled expeditiously at a suitable place in a healthy atmosphere so that future life of the parties, as also welfare of the minor children, is not adversely affected. In the present case, the place of litigation should not be made an issue by non-applicant because applicant-wife is a lady and having no source of income for maintaining herself and her children. Criminal case and the application under Section 125 of Cr.P.C., filed by applicant against non-applicant, are already pending before the Courts at Barmer and the non-applicant has to attend the Court proceedings at Barmer as and when required. 5. In the above background, this Court is of the opinion that in the instant case, balance of convenience lies in favour of applicant-wife in comparison to inconvenience caused to non-applicant-husband in case the divorce petition is transferred from Jalore to Barmer. 6. Resultantly, the present transfer petition is allowed. Divorce Petition No. 38/2021 (Reg. No. 02/2021) titled as "Khurshid Khan Vs. Khurshida Banu" pending in the Family Court, Jalore is ordered to be transferred to the Court of Additional District Judge No. 1, Barmer. 7. 6. Resultantly, the present transfer petition is allowed. Divorce Petition No. 38/2021 (Reg. No. 02/2021) titled as "Khurshid Khan Vs. Khurshida Banu" pending in the Family Court, Jalore is ordered to be transferred to the Court of Additional District Judge No. 1, Barmer. 7. Let the parties shall appear before the Court of Additional District Judge No. 1, Barmer on 22.11.2021 and thereafter, the Additional District Judge No. 1, Barmer would regulate the hearing. 8. A copy of this order be sent to the Family Court, Jalore as well as Additional District Judge No. 1, Barmer for information and necessary compliance.