Allowed

Abida Bano v. Firoz Khan

Rajasthan HC12 Sept 2019CTA/128/2019

Case brief

AI extract

What is this about?

High Court allowed transfer application by wife seeking move of divorce petition from Civil Judge Suratgarh to Family Court Bikaner. Court invoked Section 24 CPC, noting wife's unemployment, minor daughter, residence, and husband's attendance in Bikaner justified transfer.

What did the court decide?

Civil Misc. Case No.80/2019 transferred from Court of Civil Judge, Suratgarh to competent court in Bikaner.

Abida Bano Vs Firoz Khan — Rajasthan HC (2019) — LawSathi Research

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Transfer Application No. 128/2019

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Abida Bano D/o Ali Mohammed, Aged About 35 Years, W/o Firoz Khan, R/o Koriyo Ka Mohalla, Bikaner.

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----Petitioner

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Versus

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Firoz Khan S/o Khushi Mohammed, R/o Near White House, Near Yakub Master Ji House, Bhaguwala Kua, Refugee Colony, Ward 10, Suratgarh, District Sri Ganganagar.

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----Respondent

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For Petitioner(s) : Mr Shreekant Verma

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HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

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Order

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12/09/2019

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The present transfer application has been moved by the petitioner-wife seeking transfer of petition filed by the respondenthusband under Section 3 of the Dissolution of Muslim Marriage Act, 1939 being Civil Misc. Case No.80/2019 (Firoz V/s Smt. Abida) pending in the Court of Civil Judge, Suratgarh to the Family Court, Bikaner, District Bikaner, by invoking Section 24 of the Code of Civil Procedure.

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Heard.

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Learned counsel for the petitioner-wife submits that the petitioner got married as per the Muslim Law with the respondenthusband on 16.05.2008 at Bikaner. From the wedlock, a daughter was born on 15.02.2009. The petitioner went to her matrimonial home because of the marital discord between the parties. The petitioner along with her minor daughter is staying with her parents at Bikaner because of the strained relationship between

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(2 of 5)

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[CTA-128/2019]

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the parties. The litigation is also pending between the parties in the Courts of law at Bikaner. However, the respondent-husband has preferred an application for divorce in the Court of Civil Judge, Suratgarh which is pending adjudication. He further submits that since the petitioner is having no source of earning and is having responsibility of a minor daughter, aged 06 years it is very difficult for her to travel from Bikaner to Suratgarh for attending the Court’s proceedings in the petition filed by the respondent. There is no other person in the family to assist the petitioner. The respondent-husband is already attending the proceedings pending at Bikaner.

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The grounds raised as above for transfer of matrimonial matter has been time and again accepted as valid and justified grounds for transfer of case to the place where the wife is residing by this Court as well as by the Hon’ble Supreme Court in Sumita Singh Vs. Kumar Sanjay & Ors. , reported in (2001) 10 SCC 41; Sarkar (Shome) Vs. Pardip Sarkar [Transfer Petition (Civil) No.622/2007 decided by Supreme Court on 10.11.2008] ; Manju Varma Vs.State of U.P. and Ors. [Civil Appeal No. 8290 of 2002 decided by the Supreme Court on 17.11.2004] and ; Arti Rani @ Pinki Devi Vs. Dharmendra Kumar Gupta , reported in (2008) 9 SCC 353 .

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Section 24 CPC reads as under:-

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“ 24. General power of transfer and withdrawal. -

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(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

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(3 of 5)

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[CTA-128/2019]

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(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

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(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

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(3) For the purposes of this section,-

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(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

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(b) “proceeding” includes a proceeding for the execution of a decree or order.

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(4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

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(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”

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(4 of 5)

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[CTA-128/2019]

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It is noticed that Section 24 of C.P.C. does not require it necessary to issue notice to the other side and this Court, on its own motion or on being satisfied at any stage, pass appropriate orders for transfer of the concerned case. Similar view has been taken by this Court in Bhanu Kumari Vs. Jitendra Singh & Ors., reported in 2007(2) RLW (Raj.) 1077 .

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This Court also notices that in normal course, transfer petitions are filed in this Court and they remain pending for years as service is avoided by the other side. In some cases, interim orders are passed by the Court resulting in the matrimonial matter remaining undecided in the concerned family court.

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Thus, in the interest of justice and with the purpose of expeditious disposal of the matter, this Court invokes its power under Section 24 of C.P.C. and deems it appropriate to allow present transfer application and directs the transfer of concerned case to the place, as prayed for in the application filed by the petitioner-wife.

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I have considered the submissions made at the Bar. Since, the petitioner-wife is an unemployed lady having responsibility of 06 years old daughter who are living at Bikaner and the respondent-husband is already attending the proceedings in the Bikaner Court, in the circumstances, I consider it appropriate to transfer the Civil Misc. Case No.80/2019 (Firoz V/s Smt. Abida) pending in the Court of Civil Judge, Suratgarh to Bikaner. The learned District Judge, Bikaner shall transfer the matter to the Court of competent jurisdiction in Bikaner. The Court concerned, where the case is transferred, shall give notice to both the parties of the date on which they have to remain present before it.

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(5 of 5)

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[CTA-128/2019]

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The present transfer petition stands allowed in the above

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terms.

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(VINIT KUMAR MATHUR),J

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21-SunilS/-

Abida Bano v. Firoz Khan

Case brief

What is this about?

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Abida Bano v. Firoz Khan

Case brief

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