Mona Modi vs Neeraj Modi
2023 Latest Caselaw 1910 Raj

[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.

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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

[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

[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

[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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