[2023/RJJD/005870] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Transfer Appl. No. 198/2022 Mona Modi D/o Shri Chandmal Modi, Aged About 34 Years, R/o Panwadi Shastri Colony Dungarpur, At Present Chomhala, Tehsil Gangadhar, Distt. Jhalawar.
----Petitioner Versus Neeraj Modi S/o Ashok Kumar, R/o Panwadi, Shastri Colony, Dungarpur, At Present S.f.37, Shivaji Nagar, Dungarpur, Tehsil And Distt. Dungarpur.
----Respondent
For Petitioner(s) : Mr. Hemank Vaishnava
Mr. Love Jain
For Respondent(s) : Ms. Urmila Chouhan
HON'BLE MS. JUSTICE REKHA BORANA
Order
21/02/2023
The present transfer petition under Section 24 of the Code of Civil Procedure has been preferred on behalf of the petitioner-wife for transferring the petition under Sections 7 and 12 of Guardian and Wards Act,1890 (hereinafter referred to as the 'Act of 1890') preferred by respondent-husband at Family Court, Dungarpur to Family Court, Jhalawar.
It has been submitted in the petition that the petitioner had lodged an FIR being 69/2019 at Police Station, Jhalawar, wherein the challan had been filed against the respondent and criminal proceedings qua the same are pending at Jhalawar. Further, she had also preferred an application under Section 125 Cr.P.C. before the Family Court, Jhalawar and the same is also pending. (Downloaded on 23/02/2023 at 11:52:46 PM) [2023/RJJD/005870] (2 of 5) [CTA-198/2022] Three Grounds have been raised by learned counsel for the petitioner :
Firstly, that the petitioner has left the respondent house after harassment and she was also subjected to cruelty by the respondent and his family members. Therefore, there is danger to the life of petitioner at Durgarpur. Secondly, two cases remain pending as on date at Jhalawar and the respondent and his family members are attending the said dates at Jhalawar. Therefore, as other proceedings are already pending at Jhalawar, the application under Sections 7 and 12 of the Act of 1890 may also be transferred to Jhalawar. Thirdly, the petitioner is living at Jhalawar with her parents and minor child of about 5 years and it is very difficult for her to travel to Dungarpur which is 350-400 Kms on each and every date of hearing.
Learned counsel for petitioner relied on following judgements in support of his submission that wife's convenience must be given preference while considering a transfer petition:
• N.C.V. Aishwarya Versus A.S Saravana Karthik Sha;
Civil Appeal No. 4894 of 2022 (Arising out of S.L.P. (C) No. 16465 of 2021); (decided by the Hon'ble Apex Court on 18.07.2022) • Anju Boyal vs Ravindra Kumar; SB Civil Transfer Petition No.87/2020 (decided by this Court on 11.03.2022).
• Smt. Gayatri Devi Vs Raghuveer Singh; SB Civil Transfer Petition No.112/2015 (decided by this Court on 28.08.2019).
Per contra, learned counsel for the respondent submitted that the present one is not a case of harassment of the wife but of (Downloaded on 23/02/2023 at 11:52:46 PM) [2023/RJJD/005870] (3 of 5) [CTA-198/2022] harassment of the husband. Because of the desertion of the wife, the respondent-husband preferred a petition for divorce and the same has been decreed in his favour vide judgment and decree dated 07.08.2019. It has been submitted that recently it has come to the knowledge of the respondent that the petitioner has remarried and is torturing her daughter. It has even been alleged that he is in possession of the photographs of the minor daughter whereby she has been tied up with a rope which is a sufficient proof of the fact that the daughter is being tortured and not been taken care of by the wife. An application was also preferred by him to the Child Welfare Committee at Jhalawar but as no steps have been taken by the said Committee, the application under the Act of 1890, has been preferred. It has further been submitted that the applicant-wife is herself a Government Teacher and is very well capable to travel to Dungarpur as she is not dependent on any one. Learned counsel submitted that it is not the mandate of law that each and every transfer petition should be transferred to the place where a wife resides. In support of her submissions, she relied upon the judgments of this Court in the matters of Smt. Mamta Vs. Dharmendra Kumar Chouhan; S.B. Civil Transfer Application No.78/2017 (decided on 08.09.2017) and Smt. Jyoti Sarangdawot Vs. Kamlendra Singh; S.B. Civil Writ Petition No.111/2017 (decided on 04.10.2017). She submitted that the above judgments have been passed after relying upon the Hon'ble Apex Court judgment in Gargi Konar Vs. Jagjeet Singh; 2005(11) SCC 446, wherein it has been held that without ordering for transfer of the petition, the husband can be directed to pay for wife and her companions, to & fro and (Downloaded on 23/02/2023 at 11:52:46 PM) [2023/RJJD/005870] (4 of 5) [CTA-198/2022] stay expenses on every occasion on which she is required to travel for contesting the proceedings.
Heard learned counsel for the parties and perused the material available on record.
It is clear on record that the FIR as well as the application under 125 Cr.P.C. had been preferred by the petitioner at Jhalawar and subsequently, after the same being filed, an application under Sections 7 and 12 of the Act of 1890, has been preferred by the husband at Dungarpur.
In the present matter, the petition which has been prayed to be transferred to Jhalawar is a petition under Sections 7 & 12 of the Guardians and Wards Act, 1890 (for short 'the Act') i.e. a petition for custody of the minor child. Admittedly, the minor child is residing at Jhalawar at present with her mother. It is most natural that during the pendency of these proceedings, many a times either the child would be required to be produced before the court or some time/date might be fixed by the court for meeting of the child with her father. Therefore, ignoring all other aspects in the present matter, it is relevant to consider as to what would be the most convenient and in welfare of the minor child. The child would naturally be going to school also and if during the proceedings, she would be required to travel to Dungarpur, the same, in the specific opinion of this Court, would not be conducive for the mental as well as the physical health of the minor girl child. Moreover, admittedly the criminal proceedings in pursuance to the FIR lodged by the petitioner as well as the proceedings under Section 125 Cr.P.C. are also pending at Jhalawar. As held in (Downloaded on 23/02/2023 at 11:52:46 PM) [2023/RJJD/005870] (5 of 5) [CTA-198/2022] the latest Hon'ble Apex Court judgment in N.C.V. Aishwarya's case (supra), it is the wife's convenience which must be looked at while considering transfer matters. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial or the same issues and conflict of decisions. In the present matter, the Court is more concerned about the convenience/welfare of the child in comparison to the convenience of any of the parties.
In view of above observations, the present transfer petition is allowed. Civil Original Case No.8/2022 pending before the Family Court, Dungarpur is ordered to be transferred to the Family Court, Jhalawar.
The parties shall appear before the Family Court, Jhalawar on 20.03.2023 and thereafter, the Family Court, Jahalawar would regulate the hearing/further proceedings.
A copy of this order be sent to the Family Court, Dungarpur as well as the Family Court, Jhalawar for information and necessary action.
The stay petition also stands disposed of.
(REKHA BORANA),J 36-/AbhishekS/-
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