Madhya Pradesh High Court
Bharti vs Rakesh on 25 August, 2015
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M. C. C. No.172/2014
25/08/2015
Shri Satish Jain, learned counsel for the applicant.
Shri Padmnabh Saxena, learned counsel for the
respondent.
The petitioner before this Court has filed this present petition for transfer of matrimonial dispute from District Jhabua to Jaora, Distt. Ratlam.
The facts of the case reveal that the marriage took placed between the applicant and the respondent on 14/05/1997 and out of the aforesaid wedlock two children were born namely Naman and Tushar aged about 13 and 10 years respectively.
The applicant has stated in the transfer petition that she was threatened and harassed by the family members of the husband and she was ultimately thrown out of the matrimonial house. Thereafter, she started living with her father and on 10/01/2011 she has filed an application under Sec.125 of the Code the Criminal Procedure, 1973 for grant of maintenance.
The applicant's contention is that her children are studying in 9th and 6th standard at Jaora, Distt. Ratlam. She does not have any source of income and she is being looked after by her old father. It has also been stated that there is no person to support her and the distance between the two places is approximately 200 Kilometers.
On the other hand learned counsel has placed reliance upon a judgment dated 11/04/2014 passed in Criminal Revision -2- No.128/2013 arising out between the same parties and his contention is that as per the judgment delivered in the aforesaid case the wife is doing business at Jhabua and children are also studying at Jhabua and therefore, in light of the aforesaid the transfer petition deserves to be dismissed.
This Court has carefully gone through the aforesaid order. It was arising out of an order dated 20/04/2013 passed in Miscellaneous Criminal Case No. 5/2011. In the year 2011, the applicant was certainly living with her husband and at that point of time she might have been staying at Jhabua. The facts remains that at present the children are studying at Jaora. Certificates issued from school are on record. Not only this, merely because she has applied for some loan, it does not mean that she is carrying out business at Jhabua and therefore, the judgment relied upon is of no help to the respondent.
The apex Court in the case of Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi reported in (2005) 12 SCC 237 in paragraph No.2, 3 and 4 has held as under:-
"2. This is the wife's petition for transfer of Hindu Marriage Petition No.6 of 2004, Kishor Babulal Pardeshi v. Rajani Kishor Pardeshi pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra to the Family Court of proper jurisdiction at Satana, Madhya Pradesh on the ground that she does not have financial capacity to contest the litigation at Mumbai and that she is staying with her brother. She claims that her brother is unable to accompany her as he is also financially weak.
3. The husband opposes the transfer on the ground that it is equally inconvenient for him to go to Satana and that he is willing to pay the expenses for her travel to Mumbai.
4. In this type of matter, the convenience of the wife -3- is to be preferred over the convenience of the husband. Hindu Marriage Petition No.6 of 20014,Kishor Babulal Pardeshi v. Rajani Kishor Pardeshi pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra is transferred to the Family Court of proper jurisdiction at Satana, Madhya Pradesh."
Similar view has been taken by the apex Court in the case of Soma Choudhury Vs. Gourab Choudhaury reported in (2004) 13 SCC 462. Not only this in the case of Anjali Ashok Sadhwani Vs. Ashok Kishinchand Sadhwani reported in AIR 2009 SC 1374 in paragraph No.2 the apex Court has held as under:-
"2. Having heard the learned counsel for the parties and after going through the materials on record and considering the fact that the distance between Mumbai, Maharashtra and Indore, Madhya Pradesh is about 900 kms and also considering the fact that the petitioner wife has no one in her family to escort her during her journey from Mumbai to Indore, we feel it proper to transfer the case from Family Court of Indore, Madhya Pradesh to Family Court at Bandra, Mumbai. Accordingly, the case being Petition No.83 of 2006 stands transferred from Family Court of Indore, Madhya Pradesh to Family Court of Bandra at Mumbai, Maharashtra."
In light of the aforesaid, this Court is of the considered opinion that the petitioner, who is a lady does not have any source of income and is not receiving any maintenance amount regularly, is certainly entitled for transfer of M. C. A. Case No.11/2013 pending before the learned Additional District Judge, Jhabua to the Court of learned Additional District Judge, Jaora/Family Court, Jaora and Case No.50-A/2013 pending before the learned Additional District Judge, Jhabua to the learned Additional District Judge, Jaora/Family Court, Jaora.
-4-Learned counsel for the respondent has also placed reliance upon the judgment delivered in the case of Rakhi Mishra Vs. Sanjay Mishra reported in 2007(2) MPLJ 269 and his contention is that in the aforesaid case prayer for transfer of the case was turned down.
This Court has carefully gone through the aforesaid judgment and the judgment was delivered in the circumstances attending that case. The transfer of matrimonial cases are required to be decided keeping in view the facts of each and every case and also keeping in view the law laid down by the apex Court as well as the other statutory provisions of law.
In the present case as both the children are studying at Jaora and the wife is unemployed and there is no one to escort her, both the cases pending at Jhabua deserves to be transferred at Jaora, Distt. Ratlam. Not only this, there is documents on record which establishes that the applicant/wife was beaten up mercilessly by the husband resulting in serious injury and fracture and she is having a threat of life, therefore, in the considered opinion of this Court both the case i.e. M.C.A.Case No.11/2013 and Case No.50-A/2013 are transferred to Jaora, Distt. Ratlam.
Parties are directed to appear before the learned Additional District Judge, Jaora, Distt. Ratlam on 28/09/2015. Record of the cases be transmitted to Jaora. Registry to take appropriate action in the matter. It is needless to mention that -5- as the parties are facing matrimonial dispute, the learned judge is directed to decide the cases as expeditiously as possible preferably within a period of six months from 28/09/2015.
With the aforesaid, MCC stands disposed of.
(S. C. SHARMA) JUDGE Tej