Rajasthan High Court - Jodhpur
Smt. Lavina @ Sanchi vs Yash Kalra & Anr on 6 December, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Transfer Appl. No. 93 / 2017
Smt. Lavina @ Sanchi W/o Shri Kalra D/o Shri Parmanand Ji
Lalwani, Aged About 21 Years, Resident of Adarsh Vihar, Bhilwara
(Raj.)
----Petitioner
Versus
1. Yash Kalra S/o Shri Ashak Kalra, Resident of Gokul Dham
Society, Sindhi Colony, Near Pili Tanki, Police Station Kotwali,
Chandpole, Purani Sabji Mandi, Dungarpur (Raj.)
2. Manish Satwani S/o Shri Chandra Prakash Satwani, Resident of
Shyam Vihar Colony, Bhilwara.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Sanjay Nahar
For Respondent(s) : Mr. R.N. Choudhary and
Mr. Arvind Shrimali
_____________________________________________________
JUSTICE DINESH MEHTA
Judgment / Order
06/12/2017
The present application under Section 24 of the Code of Civil
Procedure had been filed by the petitioner seeking to transfer case
No. 16/2017 titled as Yash Kalra Vs. Smt. Lavina, from Family
Court, Dungarpur to Family Court, Bhilwara.
Facts apertain to the present transfer application are that the
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petitioner married the respondent on 05.03.2016. After sometime
their nuptial relation got strained, for which the petitioner lodge
FIR under Sections 498-A, 406 and 352 of IPC against the
respondent - husband at Bhilwara, levelling allegation of demand
of dowry and another case under Section 125 of the Criminal
Procedure Code for claiming maintainance. Both the cases were
instituted at Bhilwara. In the meantime, the respondent - husband
instituted a case of dissolution of marriage under Section 11 of the
Hindu Marriage Act, on the allegation of bigamy, as the petitioner
had contracted marriage with him, without taking divorce from her
earstwhile/previous husband - respondent No.2.
Mr. Sanjay Nahar, learned counsel for the applicant, seeking
transfer of the aforesaid case under Section 11 of the Hindu
Marriage Act, pending at Dungarpur, submitted that the parties
are already entangled in legal battle being fought at Bhilwara and
the petitioner residing with her parents in Bhilwara, is finding it
troublesome to contest the instant case at Dungarpur; which is
about 250 Kilometers from Bhilwara. He submitted that the
petitioner is required to undertake atleast two days' journey to
attend the hearing at Dungarpur, for which she requires a
companion also.
Mr. Ram Niwas Choudhary, learned counsel for the
respondents opposing the petitioner's request for transfer
submitted that the respondent is in private employment, for whom
attending hearings at Bhilwara is inconvenient.
Heard learned counsel for the parties and considered the
rival submissions.
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This Court can visualise the plight of the petitioner, an
unemployed lady, whose matrimony is on the brink of break up,
living with her parents at Bhilwara, who is required to undertake
the journey all the way to Dungarpur, which is 250 Kilometers.
In considered opinion of this Court it would be expedient and
in the interest of justice that the impugned proceedings pending in
Family Court, Dungarpur be transferred to Bhilwara.
My aforesaid views are fortified by the judgment rendered by
this Court in case of Smt. Vinita Vs. Himanshu, reported in AIR
2017 Raj 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. 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.
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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."
In view of above, the transfer application is allowed. The
case No.16/2017 titled as Yash Kalra Vs. Smt. Lavina, pending at
Family Court Dungarpur is transferred to Family Court, Bhilwara.
Registry is directed to send a copy of this order to Family Court,
Dungarpur and Family Court, Bhilwara so as to facilitate
transmission of record appropriately.
Mr. Ram Niwas Choudhary, learned counsel appearing for the
respondents prays for exemption of respondents' personal
appearance. Without passing any order on such request, this
Court leaves it open for the concerned Family Court to consider
such request of the respondent - husband in wake of his
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occupation.
Both the parties shall appear before Family Court on
15.01.2018, for enabling the Court to proceed further.
(DINESH MEHTA), J.
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