The High Court allowed a transfer application filed by a wife seeking to move her husband's Section 13 HMA petition from Chittorgarh to Udaipur, where she resides, citing convenience and invoking Section 24 CPC.
Transfer of Civil Misc. Case No. 7/2019 from Family Court, Chittorgarh to Family Court, Udaipur, with directions to issue notice.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Transfer Application No. 132/2019
Vandana W/o Omprkash Tailor, Aged About 30 Years, D/o Ramesh Chandra Rathore, R/o Jaloda, Presently Mukam 5/75, Housing Board Colony, Goverdhan Vilas, Udaipur (Raj.)
----Petitioner
Versus
Omprakash Tailor S/o Ghanshyam Tailor, Aged About 32 Years, B/c Tailor, R/o Jaloda, Presently 15-B, Bapunagar Senti, Chittorgarh, Tehsil And District Chittorgarh (Raj.)
----Respondent
For Petitioner(s) : Mr. Umesh Chandra Sharma
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
13/09/2019
The present transfer application has been moved by the petitioner-wife seeking transfer of petition filed by the respondenthusband under Section 13 of the Hindu Marriage Act being Civil Misc. Case No.7/2019 (Om Prakash Tailor V/s Smt. Vandana) pending in the Family Court, Chittorgarh to the Family Court, Udaipur where the petitioner-wife is residing, by invoking Section 24 read with Section 151 of the Code of Civil Procedure.
Heard.
Learned counsel for the petitioner submits that marriage was solemnized between the petitioner and respondent on 15.02.2015. They were blessed with one daughter. After some time, relationship between the petitioner and respondent became hostile. The petitioner went to maternal house along with her minor daughter and is residing at Goverdhan Vilas, Udaipur.
(2 of 5)
[CTA-132/2019]
He submits that the petitioner has filed an applications under Section 125 Cr.P.C.(Case No.403/2019) as well as Section 9 of Hindu Marriage Act (Case No.258/2019) which are pending adjudication at Family Court, Udaipur. Learned counsel further submits that the respondent has preferred an application under Section 13 Hindu Marriage Act being Civil Misc. Case No.7/2019 (Omprakash Tailor V/s Smt. Vandana) before the Family Court at Chittorgarh. The petitioner is living with her parents, who are old and infirm.There is no one in her family, which can accompany her to attend the Court proceedings at Chittorgarh and therefore, it is difficult for the petitioner to travel from Udaipur to Chittorgarh for attending the proceedings in the petition filed by the respondenthusband and therefore, he prays that the case pending before the Family Court, Chittorgarh may be transferred to the Family Court at Udaipur.
I have considered the submissions made at the bar.
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 .
Section 24 CPC reads as under:-
(3 of 5)
[CTA-132/2019]
“ 24. General power of transfer and withdrawal. -
(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-
(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
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(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.
(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;
(b) “proceeding” includes a proceeding for the execution of a decree or order.
(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.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”
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 .
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.
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.
(5 of 5)
[CTA-132/2019]
Accordingly, the present transfer petition is allowed and the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act being Civil Misc. Case No. 7/2019 (Omprakash V/s Smt. Vandana) pending in the Family Court, Chittorgarh is transferred to the Family Court, Udaipur with a direction to the Family Court, Udaipur where the case is transferred, to give notice to both the parties of the date on which they have to remain present before it.
(VINIT KUMAR MATHUR),J
16-SunilS/-
2 issues framed by the court
Whether a matrimonial petition filed by the husband should be transferred to the court where the wife resides to facilitate her attendance.
Whether Section 24 of the CPC empowers the High Court to transfer matrimonial proceedings ex parte without notice to the other party.
Colour shows how this judgement treated each authority
Sumita Singh Vs. Kumar Sanjay & Ors.Distinguished¶19
Sumita Singh Vs. Kumar Sanjay & Ors., reported in (2001) 10 SCC 41 · Who else cites this
Sarkar (Shome) Vs. Pardip SarkarDistinguished¶19
Sarkar (Shome) Vs. Pardip Sarkar [Transfer Petition (Civil) No.622/2007
Manju Varma Vs.State of U.P. and Ors.Distinguished¶19
Manju Varma Vs.State of U.P. and Ors. [Civil Appeal No. 8290 of 2002
Arti Rani @ Pinki Devi Vs. Dharmendra Kumar GuptaDistinguished¶19
Arti Rani @ Pinki Devi Vs. Dharmendra Kumar Gupta, reported in (2008) 9 SCC 353 · Who else cites this
Bhanu Kumari Vs. Jitendra Singh & Ors.Distinguished¶38
Bhanu Kumari Vs. Jitendra Singh & Ors., reported in 2007(2) RLW (Raj.) 1077
2 provisions across 2 enactments
Vandana W/o Omprkash Tailor
Omprakash Tailor
Vinit Kumar Mathur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Vinit Kumar Mathur
Parties & counsel
