Rajasthan High Court - Jaipur
Smt Shilpa Agarwal vs Subhash Agarwal on 29 May, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Transfer Application No.66/2012 With Stay Application No.2400/2012 Shilpa Agarwal Vs. Subhash Agarwal Date of Order ::: 29.05.2013 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Prashant Chahar for Shri Harendra Singh Sinsinwar, counsel for applicant Shri J.K. Gupta, counsel for non-applicant #### //Reportable// By the Court:-
This transfer application has been filed by wife applicant Shilpa Agarwal with prayer that application filed at the instance of her husband non-applicant Subhash Agarwal under Section 9 of the Hindu marriage Act, 1955 (for shot, the Act of 1955') bearing No.20/2011 in the court of District Judge, Banswara, be transferred to the Family Court-I, Jaipur and combined with petition for divorce filed by wife applicant being Divorce Petition No.286/2012 under Section 13 of the Act of 1955.
Learned counsel for applicant contended that wife applicant initially filed F.I.R. against husband non-applicant for offence under Sections 406 and 498A of the Indian Penal Code, on 13.11.2010 in which challan was filed against him in the court of Additional Civil Judge (Junior Division) and Judicial Magistrate No.12, Jaipur Metropolitan. Wife applicant also filed a complaint against respondent non-applicant in the court of Additional Civil Judge (Junior Division) and Judicial Magistrate No.9, Jaipur Metropolitan, under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein she also claimed maintenance. It was thereafter that the husband non-applicant filed a petition under Section 9 of the Act of 1955 at Banswara only with a view to harassing the wife applicant. In these circumstances, wife-applicant filed Divorce Petition under Section 13 of the Act of 1955 before the Family Court-I, Jaipur, on 28.03.2012.
It is contended that wife applicant has liability to maintain and look after a male child of two years old and, therefore, it is quite difficult for her to travel from Jaipur to Banswara, which is situated at a distance of 500 kilometers.
Learned counsel for applicant, in support of his case, has cited two judgments of the Supreme Court in Sadhna Vs. Pradeep M. Ahluwalia JT 2000 (10) SC 207 and Sumita Singh Vs. Kumar Sanjay and Another (2001) 10 SCC 41, to argue that convenience of wife should be looked into especially when litigation was earlier instituted at Jaipur.
Learned counsel for husband non-applicant opposed the transfer application and submitted that Petition under Section 9 of the Act of 1955 was filed at Banswara on 21.10.2011 earlier than the Petition for Divorce filed by the wife applicant at Jaipur on 28.03.2012. It is contended that the marriage was solemnized at Banswara and husband non-applicant was ordinarily residing at Banswara therefore the court at Banswara would have the jurisdiction.
The Supreme Court in Sadhna, supra, held that since petition under Section 9 of the Act of 1955 was filed by wife earlier in point of time at Panchkula, and application under Section 125 of the Cr.P.C. was also filed there, petition for divorce filed by husband under Section 13(1) of the Act of 1955 at later stage at Bandra, Mumbai, should be transferred to the court at Panchkula to be tried together where the wife was residing. In Sumita Singh, supra, wife sought transfer of matrimonial proceedings filed by husband against her in Ara, Bhojpur, Bihar. Case of wife was that she was residing in Delhi and she would be unable to travel up and down from Delhi to Ara, at a distance of about 1100 kilometers from Delhi, to defend the matrimonial proceedings. She also stated that she has no one with whom she can stay in Ara because her parents are residents of Gurgaon. The Supreme Court held that it is the wife's convenience that must be looked at. In the circumstances of that case, the Supreme Court made the transfer petition absolute.
In the present case, as the facts indicate that wife applicant initiated criminal proceedings against husband non-applicant for offence under Sections 406 and 498-A of the IPC at earliest point of time on 13.11.2010. Thereafter she filed another complaint against respondent non-applicant on 22.02.2011. It was thereafter that the husband non-applicant filed the petition under Section 9 of the Act of 1955 before the District Judge, Banswara, on 21.10.2011. The wife applicant in the compelling circumstances had to file application under Section 13 of the Act of 1955 seeking divorce. She has liability to maintain a small child aged barely two years and therefore requiring her to travel at a distance of 500 kilometers to Banswara on every date, would be quite inconvenient as against the inconvenience caused to the husband non-applicant, who even otherwise has to visit Jaipur in connection with proceedings in two other cases. Moreover, the divorce petition filed under Section 13 has to be given preference over the petition filed under Section 9 of the Act of 1955.
In this result, this transfer application is allowed. The Application being CM HMA No.20/2011 titled as Subhash Vs. Smt. Shilpa, pending in the Court of District Judge, Banswara, under Section 9 of the Hindu Marriage Act 1955, is ordered to be transferred to the Family Court-I, Jaipur with a direction to the latter court to try the same together with Divorce Petition No.286/2012 titled as Shilpa Agarwal Vs. Subhash Agarwal, filed under Section 13 of the Hindu Marriage Act, 1955.
The transfer application stands disposed of. This also disposes of the stay application.
(Mohammad Rafiq) J.
//Jaiman//9 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW