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2023 DIGILAW 591 (RAJ)

Monika Kanwar v. Shimbhu Singh

2023-02-22

YOGENDRA KUMAR PUROHIT

body2023
ORDER : Mr. Yogendra Kumar Purohit, J. - The instant civil transfer application under section 24 of the Civil Procedure Code, has been filed by the petitioner-wife seeking transfer of Case No.680/2020 "Shimbhu Singh v. Smt. Monika Kanwar, preferred by the respondent-husband under section 13 of the Hindu Marriage Act for dissolution of marriage, pending in the Family Court No.1, Jodhpur to the Family Court, Churu. 2. I have heard learned counsel for the parties and perused the material available on record. 3. The marriage between the petitioner and the respondent was solemnized at Churu on 7.12.2013 as per Hindu rites and rituals. It is the case of the respondent-husband that after solemnization of the marriage, the petitioner-wife treated the respondent-husband with mental and physical cruelty and from last three years she has deserted him. The respondent-husband has, therefore, filed the aforesaid case under section 13 of the Hindu Marriage Act before the learned Family Court No.1, Jodhpur for dissolution of marriage solemnized between the parties on the ground of cruelty and desertion. 4. Learned counsel for the petitioner-wife submitted that the respondent-husband with a view to harass the petitioner, has filed the aforesaid application before the Family Court No.1, Jodhpur for dissolution of marriage. It is submitted that the petitioner is living at Churu at her parental home. She being young lady and having no sufficient means to bear the travelling expenses and there is no male member to accompany her for travelling, therefore, it is not practically feasible rather very difficult and unsafe for her to travel all alone to Jodhpur which is approximately 350 kilometers away from Churu to defend the case filed by the respondent husband. It is further argued that two cases filed by the petitioner under Sections 12 & 23 of the Protection of Women from Domestic Violence Act, 2005 and under Section 125 Cr.P.C. seeking maintenance are pending consideration before the Chief Judicial Magistrate, Churu and Family Court, Churu respectively. Learned counsel next contended that while considering transfer in matrimonial matters, wife's convenience must be seen. In this regard, learned counsel has relied upon a recent decision of the Hon'ble Supreme Court in N.C.V. Aishwarya v. A.S.Saravana Karthik Sha AIR 2022 SC 4318 . Learned counsel next contended that while considering transfer in matrimonial matters, wife's convenience must be seen. In this regard, learned counsel has relied upon a recent decision of the Hon'ble Supreme Court in N.C.V. Aishwarya v. A.S.Saravana Karthik Sha AIR 2022 SC 4318 . In these facts and circumstances and relying upon the aforesaid decision, it is submitted that in the interest of justice, the case filed by the respondent-husband at Family Court No.1, Jodhpur deserves to be transferred to Family Court, Churu. 5. A reply to the transfer application has been filed on behalf of the respondent-husband opposing the prayer for transfer of the case. It is submitted that the petitioner is well educated lady having qualification of BA and MA and does not require support of anyone. It is argued that the petitioner has two real brothers namely Mehtab Singh employed in Indian Air Force and Monu working as LDC in Collectorate, Churu and her father is employed in a private coaching centre and petitioner herself is earning income by tuition. According to the respondent, two cases filed by the petitioner are already pending at Churu, and therefore, if the present matter is transferred, it would be difficult for him to attend the different dates of hearing in all these matters as he is employed in Forest Department where he does not get leave. 6. Learned counsel for the respondent has also relied upon the judgment of this Court in Smt. Jyoti Sarangdawot v. Kamlendra Singh decided on 4.10.2017, and decisions of Hon'ble Supreme Court in Neelam Bhatia v. Satbir Singh Bhatia ( 2004 (13) SCC 436 ), Teena Chhabra v. Manish Chhabra ( 2004 (13) SCC 411 ), Kulwinder Kaur @ Kulwinder Gurcharan Singh v. Kandi Friends Education Trust & Ors. AIR 2008 SC 1333 and in Preeti Sharma v. Manjit Sharma ( 2005 (11) SCC 535 ). In most of these decisions, while disposing of the transfer petition, directions have been issued to reimburse the expenses for travel, companion and stay to the petitioner-wife therein. On the aforesaid submissions, learned counsel for the respondent has implored this Court to dismiss the transfer petition. 7. I have carefully considered the arguments advanced by learned counsel for the parties. In the instant case, admittedly, the petitioner is staying with her father at Churu. On the aforesaid submissions, learned counsel for the respondent has implored this Court to dismiss the transfer petition. 7. I have carefully considered the arguments advanced by learned counsel for the parties. In the instant case, admittedly, the petitioner is staying with her father at Churu. It is also not in dispute that apart from a case filed under Sections 12 & 23 of the Protection of Women from Domestic Violence Act, 2005 at the instance of the petitioner against respondent as aforesaid, an application preferred by the petitioner against the respondent-husband under Section 125 Cr.P.C. seeking maintenance before the Family Court, Churu is pending consideration. According to the petitioner, she being a young lady and is not having sufficient means of income to bear the travelling expenses etc. as she is totally dependent upon her father. It is also the stand of the petitioner that no male member is there to accompany her for travelling, therefore, it is very difficult and unsafe to travel approximately 350 kilometers all alone from Churu to Jodhpur to attend the dates of hearing in the divorce petition filed by her husband. 8. Though it is asserted on behalf of the respondent-husband that the petitioner is having two brothers and father who can accompany her to Jodhpur for attending the dates of hearing, however, according to the respondent himself the brothers of the petitioner are employed in Indian Air Force and Collectorate, Churu and father is employed in Private Coaching Center. So far as the hardship of the respondent in attending the case preferred by him if transferred to Churu is concerned, it can be sorted out by directing the Family Court, Churu to give common dates of hearing in both the matters; one instituted at the instance of the petitioner under Section 125 Cr.P.C. pending in that Court and the another Case No. 680/2020 filed by the respondent-husband. 9. Further, it is settled law that while considering transfer of case in matrimonial proceedings instituted by the husband, the convenience of the wife is to be looked into. 9. Further, it is settled law that while considering transfer of case in matrimonial proceedings instituted by the husband, the convenience of the wife is to be looked into. In this regard, recently, Hon'ble the Supreme Court in the matter of N.C.V. Aishwarya v. A.S.Saravana Karthik Sha (supra), while considering transfer of matrimonial case under section 24 CPC, has observed as under:- "The cardinal principle for exercise of power under section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer." 10. Looking to the facts and circumstances of the case, the settled position of law by the Hon'ble Supreme Court in the matter of N.C.V. Aishwarya (supra), and the discussion made herein above, the transfer application is allowed. It is ordered that Case No. 680/2020 pending in the court of Family Court No.1, Jodhpur titled as 'Shimbhu Singh v. Monika Kanwar' be transferred to the Family Court, Churu. The Family Court No.1, Jodhpur is directed to send the record of the aforesaid case to the Family Court, Churu immediately. The parties are directed to appear before the Family Court, Churu on 13.3.2023. The Family Court, Churu is directed to give common dates of hearing in both the matters i.e. the Case No. 680/2020 and the case filed by the petitioner under Section 125 Cr.P.C. pending in that Court and dispose of the same as expeditiously as possible. A copy of this order be sent to the Family Court, Churu and Family Court No.1, Jodhpur forthwith.