Rajasthan High Court

Smt. Sarojkanwar W/O Shivraj ... vs Shivraj Bhatt S/O Shri Janwrilal @ ... on 11 November, 2021

Bench: Chandra Kumar Songara

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

              S.B. Civil Transfer Application No. 118/2020

Smt. Saroj kanwar W/o Shivraj Bhatt D/o Shri Harisingh, aged about
36 Years, Presently Resident of Rajpura Bada Tehsil Rajgarh, District
Alwar. Raj.

                                                      ----Applicant/non-applicant

                                      Versus

Shivraj Bhatt S/o Shri Janwrilal @ Joharilal Bhatt, aged about 36
years Resident of Opp. Gayatri Bhawan, Chindkawadi Nagaur Tehsil &
District Nagaur, Raj. Aadhar Card No. 3962 5497 6984

                                                         ----Respondent/applicant


For Petitioner(s)          :     Mr. Kapil Gupta, Advocate
For Respondent(s)          :     Mr. Amit Jindal, Advocate with
                                 Ms. Vijaylaxmi Gautam, Advocate



        HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA

                                      Order

  Date of Order                                        11 th November, 2021
                                       ***
By the Court :

Instant transfer application under Section 24 read with

Section 151 of the Code of Civil Procedure, 1908 has been preferred on

behalf of the petitioner-wife seeking transfer of Divorce Petition bearing

No.24/2019 titled as Shivraj Bhatt Vs.Smt. Saroj Kanwar filed under

Section 13-A of the Hindu Marriage Act, 1955 (hereinafter referred to as

'the Act of 1955') by respondent-husband from the Court of Additional

District Judge, No.1, Nagaur to the Family Court situated at Alwar.

Learned counsel appearing for the petitioner-wife has

submitted that the petitioner-wife is living alongwith her parents and

there is some hardship for her to go to Nagaur for contesting the matter

in her defence on each and every date. Counsel further submits that on

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the other hand, the respondent-husband has to come to Alwar for

attending the proceedings in the matter of application filed under

Section 125 (3) of Cr.P.C. which is pending against him. Counsel also

submits that there is no male member in her family except her father,

who is an old and infirm person and it is not possible for her to go to

Nagaur on each and every date. The petitioner is a deserted wife and it

is not possible for her to contest the matter at Nagaur. Counsel

contends that the financial condition of the petitioner is also not good

and she, being a lady, cannot alone travel from Alwar to Nagaur. Lastly,

counsel prays that the aforesaid pending divorce petition may kindly be

transferred from the Court of Additional District Judge, No.1, Nagaur to

the learned Family Court of Alwar.

In support of his case, learned counsel appearing for the

petitioner-wife, has placed reliance upon the following judgments of the

Co-ordinate Benches of this Court viz., (i) Smt. Nikita @ Naina Vs.

Rahul Soni (S.B. Civil Miscellaneous Transfer Application

No.13/2014) decided on 03.02.2014 and in the case of Smt.

Meenakshi Vs. Prakash Solanki (S.B. Civil Transfer Application

No.12/2015) decided on 26.02.2015 .

The transfer application has strongly been contested by the

learned counsel appearing for the respondent-husband and it has been

submitted on his behalf that the respondent-husband - Shivraj Bhatt

had been acquitted of offences punishable under Sections 498-A and

406 of I.P.C. by the Court of learned Judicial Magistrate 1 st Class,

Rajgarh District Alwar vide its judgment dated 28.06.2012 passed in

Criminal Case No.331/2007 titled as State of Rajasthan Vs. Johrilal @

Javrilal & Others and further submitted that the transfer application is

not maintainable before this Court.

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I have considered the submissions made by learned counsel

appearing for the parties and have perused the material made available

on record.

The judgments relied upon by the learned counsel appearing

for the petitioner-wife that Co-ordinate Bench of this Court in the case

of Smt. Nikita @ Naina (supra) had allowed the transfer application

and directed that the case filed under Section 13 of the Act of 1955 by

the non-applicant-husband before the Family Court, Jodhpur be

transferred to the Family Court, Kota, as also in another case of Smt.

Meenakshi (supra), Co-ordinate Bench of this Court, had allowed the

transfer application and directed that the divorce petition filed under

Section 13 of the Act of 1955 by the applicant-husband before the

Family Court, No.2, Jaipur be transferred to the Family Court, Merta, are

not applicable in the matter, at this stage.

In the case of Rajasthan High Court Advocates

Association Vs. Union of India, reported in 2001 (2) SCC 294,

Hon'ble Apex Court, has held as under :-

"18. It was submitted at the end by the learned counsel for the appellant that the Division Bench of the High Court in its impugned order has observed that the permanent bench at Jaipur shall have exclusive jurisdiction to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. He submitted that the use of word exclusive pre-fixed to jurisdiction is uncalled for. We find no substance in this contention as well. The purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent bench seat at Jaipur. The cases are to be heard accordingly unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court. Although the said clauses do not deal with principal seat or permanent bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent bench seat of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test-from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution."

                                             (4 of 6)               [CTA-118/2020]

                                                       (Emphasis supplied)

A Co-ordinate Bench of this Court in the case of Arun

Kumar Gupta Vs. State of Rajasthan and another, reported in

W.L.C. 2010 (2) 584, held as under :-

"9. Perusal of the aforesaid para clarifies that a specific bifurcation in regard to the territorial jurisdiction has been made between the Principal Seat at Jodhpur and the Permanent Bench at Jaipur. The case therein was accordingly taken up in reference to Article 226 of the Constitution of India and therefore judgment in case of Nasiruddin Vs. State Transport Appellate Tribunal reported in AIR 1976 SC 331 was referred. The aforesaid judgment also clarifies territorial jurisdiction while exercising jurisdiction under Article 226 of the Constitution of India and therein cause of action becomes relevant.

16. Perusal of the aforesaid notifications shows that all the cases arising out of the revenue districts mentioned in para (a) of notification dated 23.12.1976 were transferred to Jaipur and ordered to be disposed of by the Court at Jaipur. An explanation was added but same was in respect of writ cases. This clearly indicates that other than writ cases to be dealt with as per explanation, other cases were to be transferred and subsequent institution of the cases was to be as per the Presidential order. The subordinate Court working under the territorial jurisdiction of Principal Seat at Jodhpur or Permanent Bench at Jaipur become determining factor for further appeal or maintaining further miscellaneous petition. So far as the writ jurisdiction is concerned, that has been explained by the Hon'ble Apex Court in the case of Rajasthan High Court Advocate Association's case (supra). Last para of which has been quoted because last para of the aforesaid judgment makes a reference of exclusive jurisdiction of Permanent Bench at Jaipur vis-a-vis Seat at Jodhpur. For jurisdiction under Article 226 of the Constitution, the Hon'ble Apex Court held that functional bifurcation of the territorial jurisdiction between Principal Seat and Permanent Bench would where cause of action took place. In case of any dispute, applying the test given in the aforesaid judgment, individual case would be decided. This is in regard to the writ jurisdiction otherwise functional bifurcation as recognized by the Hon'ble Apex Court in Rajasthan High Court Advocates Association (supra) makes it clear that for 11 Districts, Permanent Bench, Jaipur would be having exclusive jurisdiction. There is a bifurcation of the territorial jurisdiction for functioning between Principal Seat and Permanent Seat. It is divided with the subordinate Courts working in the respective revenue districts mentioned in the Presidential and Chief Justice's order read with High Court Rules. In view of the aforesaid, a petition under Section 482 Cr.P.C. against the order passed by the Court at Churu cannot be maintained at Permanent Seat at Jaipur as Churu District falls within the territorial jurisdiction of Principal Seat at Jodhpur as per bifurcated functional jurisdiction.

(Emphasis supplied)

20. Coming to the facts of this case, since cognizance order has been passed by the subordinate Court falling within the functionally bifurcated territorial jurisdiction of Principal Seat at Jodhpur, thus the order passed by the said Court can be

(5 of 6) [CTA-118/2020]

challenged by maintaining appeal, revision or miscellaneous petition before the Principal Seat at Jodhpur alone. The position for filing of the writ petition may, however, be different.

(Emphasis supplied)

In the case of Shailey Madne w/o Pankaj Kumar Madne

Vs. Pankaj Kumar Madne, S/o J V Madne, reported in 2012 (4)

MPLJ 635, Hon'ble High Court of Madhya Pradesh (Gwalior Bench), held

as under :-

"9. It is a undisputed fact that the aforesaid Family Court of Bhopal comes under the territorial jurisdiction of the Principal Seat at Jabalpur, while, the Family Court at Gwalior comes under the territorial jurisdiction of Bench of this Court at Gwalior and, therefore, in view of the provisions of Sections 23 & 24 of CPC read along with Rules of Chapter 3 of the Madhya Pradesh High Court Rules, 2008, such transfer petition could not be entertained at this Bench at Gwalior."