Allowed

Smt. Sonia @ Ritu v. Ratnesh @ Sonu

Rajasthan HC11 May 2018CTA/179/2017

Case brief

AI extract

What is this about?

In this transfer application, the High Court of Rajasthan at Jodhpur allowed the transfer of a family court case from Chittorgarh to Udaipur. The court held that transfer was convenient given the petitioner's lack of support in Chittorgarh and the respondent's existing litigation in Udaipur, citing principles of comparative hardship under Section 24 CPC.

What did the court decide?

The case No. 338/2017 (Ratnesh @ Sonu Vs. Smt. Sonia @ Ritu) is withdrawn from Family Court, Chittorgarh and transferred to Family Court, Udaipur.

Smt. Sonia @ Ritu Vs Ratnesh @ Sonu — Matrimonial and Divorce | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Transfer Appl. No. 179 / 2017

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Smt. Sonia @ Ritu D/o Kailash Chandra Chouhan, W/o Ratnesh @ Sonu, Aged About 30 Years, R/o New Sangam Nagar, Opp. Pashupati Gas Godown, Nagda Restaurant Gali, University Road, Udaipur (Raj.).

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----Petitioner

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Versus

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Ratnesh @ Sonu S/o Laxminarayan Sevariya, Aged About 29 Years, R/o "Maa" 97-E, Sector No. 5, Opp. Newar Girls College, Near Quarter of Commissioner of Municipality, Gandhi Nagar, Chittorgarh (Raj.).

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----Respondent

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For Petitioner(s) : Mr. Manish Kumar Pitaliya

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For Respondent(s) : Mr. Deepak Menaria

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JUSTICE DINESH MEHTA

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Judgment

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11/05/2018

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The present transfer application under Section 24 of the Code of Civil Procedure has been filed by the petitioner, seeking transfer of case No.338/2017 from Family Court, Chittorgarh to Family Court, Udaipur.

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Mr. Pitaliya, learned counsel for the petitioner narrating the facts of the case, stated that the petitioner’s marriage with the respondent was solemnised on 10.03.2015, as per Hindu rituals at Udaipur. After her marriage, she started living with her husband at Udaipur, but soon thereafter their matrimony got disturbed, for which started living separately. The petitioner is residing at Udaipur with her parents, whereas the respondent is residing with his parent at Chittorgarh.

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(2 of 4)

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[CTA-179/2017]

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He contended that respondent – husband has filed an

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application under Section 13 of the Hindu Marriage Act for dissolution of marriage at Chittorgarh. Whereas the petitioner has filed a criminal case under Section 498-A of the IPC, which is pending in competent Court at Udaipur.

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Learned counsel for the petitioner submitted that the petitioner is living with her old parents and she is out of job presently, for whom taking up journey to Chittorgarh is troublesome as it involves cost and time not only of her own but also of her old father who has to accompany her during her visit to Chittorgarh, which is about 120 Kms. from Udaipur. He further submitted that the respondent – husband in any case is required to attend the hearing of the case lodged by her at Udaipur and it would be convenient to both the parties, if the present matter is also transferred from Chittorgarh to Udaipur.

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Learned counsel for the respondent, on the other hand, opposed the prayer of the transfer and contended that the respondent – husband is also jobless and living with his parents. He further submitted that the respondent’s father, who is paralyzed, needs special care and attention for which, he would find it difficult to attend the hearing at Udaipur, if the matter is transferred.

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Having heard learned counsel for the parties and after considering the comparative hardship of the rival parties, this Court is of the opinion that it would be convenient to all the parties, if the matter is transferred from Family Court, Chittorgarh to Family Court, Udaipur as the petitioner is a lady, who has

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(3 of 4)

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[CTA-179/2017]

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nobody to accompany, if she goes to attend the hearing in Chittorgarh. The respondent – husband is also facing a case at Udaipur instituted by the petitioner, which he has to come to Udaipur, in any event. Respondent can request the Family Court, Udaipur to give common date for his convenience.

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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 :-

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“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.

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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

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(4 of 4)

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[CTA-179/2017]

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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.

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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.”

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In view of aforesaid, the application at hand is allowed and the Case No. 338/2017 (Ratnesh @ Sonu Vs. Smt. Sonia @ Ritu) is withdrawn from Family Court, Chittorgarh and transferred to Family Court, Udaipur.

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Learned counsel for both the parties shall inform their respective parties, to appear before the Family Court, Udaipur on 09.07.2018.

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A copy of this order be sent to Family Court, Chittorgarh and Family Court, Udaipur for information and transmission of record.

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(DINESH MEHTA), J.

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Anurag/42

Smt. Sonia @ Ritu v. Ratnesh @ Sonu

Case brief

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Smt. Sonia @ Ritu v. Ratnesh @ Sonu

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