Anuradha W/O Sh.Sameer Haldhani ... vs Sameer Haldani S/O Shri Kamlesh ...
2021 Latest Caselaw 3677 Raj/2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S. B. Civil Transfer Application No. 94/2020

1. Smt. Anuradha Haldhani W/o Sh. Sameer Haldhani D/o Late Sh. Murari Lal Sain, Aged About 43 Years, Presently Resident Of 83/55, Behind Jai Ambe Public School, Mitra Nagar, Raatidang, Vaishali Nagar, Ajmer (Raj.)- 305008

2. Amit Sain S/o Late Sh. Murari Lal Sain, R/o 83/55, Behind Jai Ambe Public School, Mitra Nagar, Raatidang, Vaishali Nagar, Ajmer (Raj.)-305008

3. Tinku Kaushal S/o Sh. Sita Ram Kaushal, C/o Amit Sain, R/o 83/55, Behind Jai Ambe Public School, Mitra Nagar, Raatidang, Vaishali Nagar, Ajmer (Raj.)-305008

4. Pradeep Verma S/o Sh. Premnarayan Verma, R/o Panchsheel Vihar, Behind Gulmohar Garden, Ajmer Road, Bhankrota, Jaipur.

----applicants Versus Sameer Haldhani S/o Shri Kamlesh Haldhani, Aged About 49 Years, R/o 59, Marudhar Nagar, D.C.M., Ajmer Road, Jaipur.

                                                                ----non-applicant


For applicant(s)         :     Mr. Vivek Goyal
For non-applicant(s)     :     Mr. Rajneesh Gupta



          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                    Order

August 13, 2021

The instant transfer application under Section 24 of the Code

of Civil Procedure, 1908 has been preferred by the applicant-wife

seeking transfer of the petition for restitution of conjugal rights

filed under Section 9 of the Hindu Marriage Act, 1955 (afterwards

referred to as "the Act of 1955") read with Section 7 of the Family

Court Act and Section 151 of C.P.C., by the non-applicant

-husband bearing Case No. 744/2020 titled as "Sameer Haldhani

(2 of 7) [CTA-94/2020]

Vs. Smt. Anuradha Haldhani & Ors." from Family Court No. 1,

Jaipur Metropolitan (First) to Family Court, Ajmer.

Brief facts of the case are that the marriage between the

applicant No. 1 and non-applicant was solemnized on 17.04.2009

at Ajmer in accordance with Hindu rites; out of said wedlock, the

applicant-wife has given birth to a baby child, viz. Ms. Yashasvi on

29.07.2012. The applicant-wife alleged that she was treated with

cruelty in connection with dowry demands. She was expelled from

matrimonial home with her 8 years daughter on 12.07.2020. She

is residing with her parents. She is housewife having no

independent source of income for maintaining herself and her

daughter. An FIR has been lodged on the complaint filed by the

applicant-wife under Sections 498-A, 406, 120-B, 323 & 354(B)

I.P.C. and Section 4/6 of the Dowry Prohibition Act at Ajmer. She

has also filed an application under Section 125 Cr.P.C. against the

non-applicant-husband in the Family Court, Ajmer on 01.09.2020.

She has also filed an application under the provisions of Protection

of Women from Domestic Violence Act, 2005 against the non-

applicant-husband and her in-laws in the Court of Judicial

Magistrate No. 3, Ajmer on 01.09.2020. All the above three

proceedings are pending at Ajmer. The non-applicant-husband

has filed an application under Section 9 of the Act of 1955 against

the applicant-wife in the Family Court No. 1, Jaipur Metropolitan

seeking decree of restitution of conjugal rights, which is registered

as Case No. 744/2020, in which show cause notice was issued to

the applicant-wife on 17.08.2020. In compliance of the notice,

she appeared before the Family Court No. 1, Jaipur on

16.09.2020, on which date, when the applicant-wife was coming

to the Court, the non-applicant-husband stopped her way with

(3 of 7) [CTA-94/2020]

some mischievous persons and threatened her. The non-applicant

has deliberately filed the above application on fictitious grounds

just to harass and humiliate the applicant-wife. The applicant-

wife is helpless to attend and contest the matter in the Family

Court No. 1, Jaipur as she is having 8 years old daughter, who is

residing with her. On the above grounds, the present transfer

application has been filed by the applicant-wife.

In reply to the transfer application, the factum of marriage of

the parties has been admitted by the non-applicant but rest of the

averments made in the application have been denied. It is

submitted that a petition is pending for custody of minor daughter,

viz. Ms. Yashasvi before the Family Court, Ajmer at the instance of

the non-applicant. The non-applicant is always ready and willing

to discharge matrimonial obligations and to take care of

upbringings of his daughter and to maintain his wife also. Since it

was the second marriage between the parties, therefore, no

question arises for any dowry demand. The daughter of the non-

applicant was studying in Bright Land Senior Secondary Girls

School, Vaishali Nagar, Jaipur in Class - III. The non-applicant

was regularly making payment of school fees and conveyance

charges of his daughter and is taking care of education of his

daughter. The non-applicant is always ready and willing to keep

his wife with him along with minor daughter. The criminal

proceedings initiated by the applicant-wife against the non-

applicant are merely pressure tactics. The applicant-wife left the

matrimonial house at Jaipur and the spouse last resided together

at Jaipur, therefore, the Court at Jaipur is having jurisdiction to try

the matter relating to restitution of conjugal rights. It is very

difficult for the non-applicant to move from Jaipur to Ajmer on

(4 of 7) [CTA-94/2020]

each and every date of hearing. The number of petitions have

been filed by the applicant-wife just in order to humiliate the non-

applicant. On these premises, the non-applicant-husband has

prayed to dismiss the transfer application filed by the applicant-

wife.

After the arguments of the learned counsel for the parties

were heard and the order was reserved, the applicant has filed

rejoinder to the reply filed by the non-applicant on 10.08.2021,

which is taken on record.

Learned counsel for the applicant-wife submitted that the

applicant-wife has no source of income and she is residing at

Ajmer with her parents. Two criminal proceedings and one quasi

criminal proceedings under Section 125 Cr.P.C. are pending

against the non-applicant at Ajmer. The non-applicant himself has

filed the application seeking custody of their minor daughter at

Ajmer. In the circumstances, the balance of convenience lies in

favour of the applicant-wife and therefore, the applicant prayed for

transfer of petition for restitution of conjugal rights pending in the

Family Court No. 1, Jaipur Metropolitan (First) to Family Court,

Ajmer.

Learned counsel for the applicant-wife has relied on the

following judgments :-

        (1)    2001 (10) SCC 41             :   Sumita Singh Vs. Kumar

               Sanjay and another

        (2)    (2005) 11 SCC 394                :    Neelam Pravin Singh

Bhadoria Vs. Pravin Singh Ramakant Bhadoria

(3) 2004 WLC Raj (U.C.) 257 : Sunita Vs. Om

Prakash

(5 of 7) [CTA-94/2020]

(4) (2001) 10 SCC 449 : Anuradha Dalal Vs.

Rohit Dalal

(5) 2017 (1) WLC (SC) Civil 660 : Krishna Veni

Nagam Vs. Harish Nagam

(6) Transfer Petition (Civil) No. 455 of 2020 :

Neetu Yadav Vs. Sachin Yadav (decided on

30.09.2020)

On the other hand, learned counsel for the non-applicant

submitted that false allegations have been levelled by the

applicant-wife in the criminal proceedings initiated against the

non-applicant. The applicant-wife is playing pressure tactics on

the non-applicant. The non-applicant is ready to bear the

expenses of her traveling as the Court at Jaipur only has

jurisdiction to hear and decide the application filed under Section

9 of the Act of 1955, which has yet not been replied by the

applicant-wife. The minor daughter is presently pursuing her

study at Jaipur, the fees of which is being borne by the non-

applicant. The non-applicant, therefore, prayed for dismissal of

the transfer application filed by the applicant-wife.

Having considered the rival submissions made by learned

counsel for the parties and after perusal of the record, this Court

has to decide as to whether the balance of convenience lies in

favour of the applicant-wife or not.

At this stage, it is pertinent to mention that the transfer

application is required to be decided on the basis of facts and

circumstances of each case, hence, the judgments cited by the

learned counsel for the applicant cannot be made basis as a

precedent to infer that the balance of convenience always lies in

(6 of 7) [CTA-94/2020]

favour of the wife. Other relevant factors have to be taken into

consideration while deciding the transfer application.

It is not in dispute that the marriage between the parties

was solemnized on 17.04.2009 at Ajmer. It is also not in dispute

that out of the said wedlock, the applicant-wife gave birth to a

baby child, viz. Ms. Yashasvi on 29.07.2012, who is now more

than 9 years old. It is also not in dispute that the non-applicant

has filed the application under Section 25 of the Guardianship and

Wards Act, 1890 (afterwards referred to as "Act of 1890") at

Ajmer, a copy of which is also on record. It is also not in dispute

that viz. Ms. Yashasvi is in custody of the applicant-wife. The

question regarding her present place of schooling need not to be

decided in this petition and the same will be decided by the

concerned Family Court. It is also not in dispute that two criminal

cases and one quasi criminal proceedings under Section 125

Cr.P.C., initiated by the applicant-wife against the non-applicant-

husband, are pending at Ajmer, in which the non-applicant has to

come at Ajmer as and when required. It is also not in dispute that

the non-applicant has to attend the Family Court at Ajmer for

pursuing the application under Section 25 of the Act of 1890. The

correctness of allegations levelled in the proceedings initiated

under the criminal law as also averments made in the application

filed under Section 9 of the Act of 1955, which is sought to be

transferred by the applicant-wife herein, are not the subject

matter of this transfer application. The application under Section

9 of the Act of 1955 has been filed at the instance of the non-

applicant, who in comparison to his wife, is more capable to travel

from Jaipur to Ajmer, which is situated at the distance of around

140 kms. It would be in the interest of both the parties that their

(7 of 7) [CTA-94/2020]

matrimonial dispute is settled expeditiously at a suitable place in a

healthy atmosphere so that future life of the parties as also

welfare of the minor daughter is not adversely affected. In the

present case, the place of litigation should not be made an issue

by the non-applicant because the applicant-wife is a lady and

having no source of income for maintaining herself and her

daughter. There are already multiple proceedings pending between

the parties in the Courts at Ajmer.

In view of the above, this Court is of the opinion that in the

instant case, the balance of convenience lies in favour of the

applicant-wife in comparison to inconvenience caused to the non-

applicant-husband in case the proceedings are transferred from

Jaipur to Ajmer.

Resultantly, the present transfer petition is allowed. The

Case No. 744/2020 titled as "Sameer Haldhani Vs. Smt. Anuradha

Haldhani & Ors." pending in the Family Court No. 1, Jaipur

Metropolitan (First) is ordered to be transferred to the Family

Court, Ajmer.

Let the parties may appear before the Family Court, Ajmer

on 13.09.2021 and thereafter, the Family Court, Ajmer would

regulate the hearing.

A copy of this order be sent to the Family Court No. 1, Jaipur

Metropolitan (First) as well as Family Court, Ajmer for information

and necessary compliance.

(RAMESHWAR VYAS),J

INDER NEBHWANI/

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