Rajasthan High Court - Jodhpur
Smt. Suman vs Mohan Ram on 18 May, 2018
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. CIVIL TRANSFER APPLICATION NO. 154 / 2017. Smt. Suman W/o Shri Mohan Ram D/o Shri Heera Ram Faroda, Aged About 30 Years, By Caste Jat, R/o Faroda Ki Dhani, Gram Talanpur, Tehsil Merta City, District Nagaur, Rajasthan.
----Petitioner Versus Mohan Ram Latiyal S/o Shri Shankar Lal Latiyal, By Caste Jat, R/o Merta Road, Tehsil Merta District Nagaur.
----Respondent Connected With S.B. CIVIL TRANSFER APPLICATION NO. 99 / 2017. Mohan Ram Latiyal
----Petitioner Versus Smt. Suman
----Respondent _____________________________________________________ For Petitioner(s) : Mr. I.R. Choudhary (Wife). For Respondent(s) : Mr. Harish Jangid (Respondent). _____________________________________________________ (2 of 7) [ CTA-154/2017] JUSTICE DINESH MEHTA Order 17/05/2018 (CTA No.154 / 2017) The present transfer application under Section 24 of the Code of Civil Procedure has been filed by the petitioner-wife, seeking transfer of Divorce Case No. 366/2012 titled as "Mohan Ram Latiyal Vs. Smt. Suman" from the Family Court No.2, Jodhpur to the Family Court, Merta.
Mr. Choudhary, learned counsel for the petitioner-wife, narrating the facts in nutshell, stated that the petitioner contracted marriage with the respondent on 11.05.2007, as per the Hindu rituals and customs. Mr. Choudhary submitted that the petitioner was ill-treated by her in-laws but, to save the matrimony, she has tolerated the same. When the petitioner was ousted from her matrimonial home, she filed a petition under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights, which is pending consideration before the Family Court at Merta.
In the meantime, the respondent-husband has filed a petition under Section 13 of the Hindu Marriage Act, for dissolution of the marriage before the Family Court No.2, Jodhpur.
Pointing the predicament of the petitioner, learned counsel Mr. Choudhary submitted that the petitioner, who is residing in a village Talanpur, has no direct means of transportation to Jodhpur and it very cumbersome for the petitioner to attend the hearing of (3 of 7) [ CTA-154/2017] the case at Jodhpur, as she had to firstly travel from her village to Merta and then, proceed to Jodhpur. Journey upto Jodhpur not only consumes time but also puts a financial burden on the petitioner, having three younger sisters and no male member for accompanying her to Jodhpur. The petitioner apprehends threats to her body and life from the respondent-husband, who is a Dentist practicing at Jodhpur. Mr. Choudhary also submitted that father of the petitioner is an old man of 65 years and suffering from many old age diseases, while the mother of the petitioner is an old infirm lady. In the background of these facts, he submitted that the Case No. 366/2012 titled as "Mohan Ram Latiyal" pending before the Family Court No. 2, Jodhpur be transferred to the Family Court, Merta.
Mr. Harish Jangid, learned counsel for the respondent- husband, opposing the prayer for transfer of the case, contended that the respondent is living at Jodhpur and running his Dental Clinic, would find it very difficult to go to Merta to attend the hearing of the case, if the matter is transferred to Merta, as his clinic shall be left unattended, putting burden on his image and financial health.
He submitted that the respondent is prepared to recompense the petitioner for the cost of travelling and added that even the cases filed by the petitioner (wife) be transferred to Jodhpur pursuant to Transfer Petition (No.99/2017) filed by him.
Having heard learned counsels for the parties and upon appreciation of the fact-situation of the case, this Court is of the (4 of 7) [ CTA-154/2017] opinion that it would be expedient and in the interest of justice that the Case No. 366/2012 pending before the Family Court No.2, Jodhpur be transferred to the Family Court, Merta, as it would be a bit difficult and torturous for the petitioner hailing from a small village firstly to Merta and then to Jodhpur, which is about 90 kilometers and not well connected by means of commutation. Such effort will affect her potential to defend the present case for dissolution of the marriage. After transfer of the case in question, the Family Court at Merta would conjointly decide both the cases, the present case and the one filed by the petitioner for restitution of conjugal rights.
My aforesaid opinion is formed on the basis of the judgment rendered by this Court in the case of Smt. Vinita Vs. Himanshu, reported in AIR 2017 Rajasthan 102.
It will not be out of context to quote relevant excerpts from the judgment of Smt. Vinita Vs. Himanshu (supra), wherein this Court has held as under:-
"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 (5 of 7) [ CTA-154/2017] 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 (6 of 7) [ CTA-154/2017] 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. Suffice it to say, that in the present case, it is not the distance alone for which this Court finds that it would be convenient for the petitioner-wife to defend the case in question at Bhilwara instead of Chittorgarh. There are other surrounding circumstances stated above, for which this Court feels it appropriate to transfer the case to the court at Bhilwara."
In view of the discussions aforesaid, Case No. 366/2012 titled as "Mohan Ram Latiyal Vs. Smt. Suman" is withdrawn from the Family Court No.2, Jodhpur and transferred to the Family Court, Merta.
Both the parties shall appear before the Family Court, Churu on 30.05.2018.
It will be the responsibility of the rival counsels to inform their respective clients.
A copy of this order be sent to the Family Court No.2, Jodhpur as well to the Family Court, Merta for information and for facilitating transmission of the record.
The Transfer Application stands allowed, as indicated above.
(7 of 7) [ CTA-154/2017] (CTA NO.99/2017) In view of the aforesaid detailed order passed in CTA No. 154/2017 filed by the petitioner-wife, the present Transfer Application (No. 99/2017) filed by the respondent-husband, seeking transfer of the Case No. 14/2016 titled as "Suman Vs. Mohan Ram" from Family Court, Merta to the Family Court No.2, Jodhpur Metropolitan is dismissed.
(DINESH MEHTA), J.
/Mohan/26-27