This single judge order allowed a civil transfer application filed by a wife seeking to transfer her husband's dissolution of marriage case from Family Court Jaipur to Family Court Churu.
Transfer of Case No. 1229/2017 from Family Court-I, Jaipur to Family Court, Churu allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. CIVIL TRANSFER APPLICATION NO. 175 / 2017.
Ritu Jangid Wife of Nitin Jangid, D/o Shri Sohan Lal Jangid, Aged About 27 Years, By Caste Jangid Brahmin, Resident of C/o Seva Ram Mistri, Sohan Lal Jangid, Shanti Palace, Lal Ghantaghar, Nearby Nandeshwar Mandir, Station Road, Ward No. 17, Tehsil & District Churu. ----Petitioner
Versus
Nitin Jangid Son of Shri Ghasi Ram, By Caste Jangid Brahmin, Resident of 6 Tejaji Marg, New Sanganer, Road, Sodhala, Tehsil & District Jaipur. ----Respondent
_____________________________________________________ For Petitioner(s) : Mr. Ashwini Swami. For Respondent(s) : Mr. Mahesh Khyani.
JUSTICE DINESH MEHTA
Order
17/05/2018
The present transfer application under Section 24 of the Code of Civil Procedure has been filed by the petitioner-wife, seeking transfer of Case No. 1229/2017 titled as “Nitin Jangid Vs. Smt. Ritu” from the Family Court-I, Jaipur to the Family Court, Churu.
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Mr. Swami, learned counsel for the petitioner-wife, narrating the facts in nutshell, stated that the petitioner contracted marriage with the respondent on 07.02.2010, after observing customs and rituals. The petitioner gave birth to a female child, who is about 5 years of age at present. Due to strained matrimony, the petitioner has left the house of her in-laws and came to Churu to live with her parents.
Mr. Swami informed that other three cases filed by her, being cases under Section 125 Cr.P.C.; under Section 498-A IPC; and third being under Section 12 of the Domestic Violence Act are pending before the Competent Courts at Churu; whereas, the respondent-husband has filed a petition under Section 13 of the Hindu Marriage Act, for dissolution of the marriage in Family Court-I, Jaipur.
Pointing the predicament of the petitioner, learned counsel Mr. Swami submitted that the petitioner, who is residing in a small town at Churu finds it very difficult to attend the hearing of the case in a big city, like Jaipur; journey upto Jaipur not only consumes time but also puts a financial burden on the petitioner. Learned counsel for the petitioner further submitted that the petitioner has already lost her mother and she has an old father, who cannot accompany her to Jaipur. In the facts of the present case, it is desirable that the Case No. 1229/2017 pending before the Family Court-I, Jaipur be transferred to the Family Court, Churu, argued Mr. Swami.
Mr. Mahesh Khyani, learned counsel for the respondenthusband, opposing the prayer for transfer of the case, contended
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that the respondent is living at Jaipur and carrying on his coal business; their five years old daughter is also living with him at Jaipur and it would be very difficult to go to Churu to attend the hearing of the case. If the matter is transferred to Churu, his young daughter as well as the coal business shall be left unattended, for which, the case be not transferred, submitted Mr. Khyani.
Having heard learned counsels for the parties and upon overall appreciation of the fact-situation of the case, this Court is of the opinion that it would be expedient and in the interest of justice that the Case No. 1229/2017 pending before the Family Court-I, Jaipur be transferred to the Family Court, Churu, as it would be a bit difficult for the petitioner, a lady, hailing from a small town to go to Jaipur, which is about 300 kilometers to defend the present case for dissolution of the marriage.
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.
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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 castiron 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 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
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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. 1229/2017 titled as “Nitin Jangid Vs. Smt. Ritu” is withdrawn from the Family Court-I, Jaipur and transferred to the Family Court, Churu.
Both the parties shall appear before the Family Court, Churu on 12.07.2018.
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-I, Jaipur as well as to the Family Court, Churu for information and for facilitating transmission of the record.
The Transfer Application stands allowed, as indicated above.
(DINESH MEHTA), J.
/Mohan/28
2 issues framed by the court
Whether the Family Court case pending in Jaipur can be transferred to the Family Court in Churu considering the petitioner-wife's residence and convenience.
Whether the grounds of convenience and apprehension of hardship justify the transfer under Section 24 CPC.
Colour shows how this judgement treated each authority
Smt. Vinita Vs. Himanshu, AIR 2017 Rajasthan 102Relied on¶23
1 provisions across 1 enactments
DINESH MEHTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
DINESH MEHTA
Parties & counsel
