Allowed

Smt. Kusum v. Dushyant Kumar

Rajasthan HC17 May 2018CTA/94/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed a transfer application under Section 24 CPC, moving a matrimonial case from the Family Court at Hanumangarh to the Family Court at Bikaner. The court found transfer expedient due to the petitioner's distance and the need to coordinate with a pending 498-A case at Bikaner.

What did the court decide?

Case No.123/2017 transferred from Family Court, Hanumangarh to Family Court, Bikaner.

Smt. Kusum Vs Dushyant Kumar — Property and Title | 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. 94 / 2017

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Smt. Kusum W/o Shri Dushyant Kumar D/o Shri Banwari Lal, By Caste Brahmin, Resident of Adarsh Vidya Mandir, Ambasar Road, Village Udairamsar, Tehsil & District Bikaner.

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----Petitioner

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Versus

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Dushyant Kumar S/o Shri Ram Gopal, By Caste Brahmin, Resident of Ward No. 18, Pilibanga, District Hanumangarh.

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----Respondent

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For Petitioner(s) : Mr. HS Shrimali _____________________________________________________ JUSTICE DINESH MEHTA

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Order

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17/05/2018

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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.123/2017 (Dushyant Vs. Kusum) from Family Court, Hanumangarh to Family Court, Bikaner.

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Mr. Shrimali, learned counsel for the petitioner narrating the requisite facts of the case, stated that the petitioner’s marriage with respondent was solemnized as per Hindu Rituals on 09.04.2016, soon whereafter their matrimonial relations got disturbed. In wake of such atmosphere, she has left her in-law’s house and come to Village Udairamsar, District Bikaner to live with her parents.

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The respondent – husband in the meanwhile filed a petition under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights at Family Court, Hanumangarh.

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(2 of 4)

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[CTA-94/2017]

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Pointing out the predicament of the petitioner, learned counsel contended that Hanumangarh is 250 k.m. from Bikaner and petitioner, living in a village near Bikaner finds it difficult to undertake travel from Bikaner to Hanumangarh, without a male companion.

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Learned counsel also informed that the respondent – husband has harassed the petitioner on some occasions, when she went to Hanumangarh for participating in the proceedings.

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Despite service of the notice, nobody has appeared on behalf of respondent.

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In the facts of the present case, this Court is of the opinion that it would be expedient and in the interest of justice to transfer the present case from Family Court, Hanumangarh to Family Court, Bikaner as petitioner’s other case being a case under Section 498 – A of IPC is pending at Bikaner. If the present matter is transferred to Bikaner; the respondent – husband would be in a position to participate in both the cases.

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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

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(3 of 4)

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[CTA-94/2017]

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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 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 the above, the Case No.123/2017 (Dushyant Vs.

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Kusum) is withdrawn from Family Court, Hanumangarh and

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(4 of 4)

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[CTA-94/2017]

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transferred to Family Court, Bikaner.

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A copy of this order be sent to the Family Court, Hanumangarh as well as Family Court, Bikaner for information and transmission of record.

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The present transfer application stands allowed.

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(DINESH MEHTA), J.

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Himanshu/- 24

Smt. Kusum v. Dushyant Kumar

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Smt. Kusum v. Dushyant Kumar

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