Rajasthan High Court - Jodhpur

Monika Kanwar vs Shimbhu Singh on 22 February, 2023

Bench: Yogendra Kumar Purohit

[2023/RJJD/005603]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Transfer Appl. No. 158/2021

Monika Kanwar W/o Shimbhu Singh D/o Kayam Singh, Aged
About 26 Years, R/o Ward No. 1, Shiv Colony, Opp. Balaji
Temple, Churu, Rajasthan.
                                                                   ----Petitioner
                                    Versus
Shimbhu Singh S/o Pratap Singh, Aged 28 years, R/p Plot No.
35, Shiv Colony, Shikargarh, Jodhpur
                                                                 ----Respondent


For Petitioner(s)         :     Mr. Dinesh Kumar Ojha
For Respondent(s)         :     Mr. Salman Agha



     HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

                                     Order

Date of pronouncement : 22/02/2023
Judgment reserved on : 16/02/2023

BY THE COURT :

1. The instant civil transfer application under Section 24 of the

Civil Procedure Code, has been filed by the petitioner-wife seeking

transfer of Case No.680/2020 "Shimbhu Singh Vs. Smt. Monika

Kanwar, preferred by the respondent-husband under Section 13 of

the Hindu Marriage Act for dissolution of marriage, pending in the

Family Court No.1, Jodhpur to the Family Court, Churu.

2. I have heard learned counsel for the parties and perused the

material available on record.

3. The marriage between the petitioner and the respondent was

solemnized at Churu on 7.12.2013 as per Hindu rites and rituals.

It is the case of the respondent-husband that after solemnization

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of the marriage, the petitioner-wife treated the respondent-

husband with mental and physical cruelty and from last three

years she has deserted him. The respondent-husband has,

therefore, filed the aforesaid case under Section 13 of the Hindu

Marriage Act before the learned Family Court No.1, Jodhpur for

dissolution of marriage solemnized between the parties on the

ground of cruelty and desertion.

4. Learned counsel for the petitioner-wife submitted that the

respondent-husband with a view to harass the petitioner, has filed

the aforesaid application before the Family Court No.1, Jodhpur for

dissolution of marriage. It is submitted that the petitioner is living

at Churu at her parental home. She being young lady and having

no sufficient means to bear the travelling expenses and there is no

male member to accompany her for travelling, therefore, it is not

practically feasible rather very difficult and unsafe for her to travel

all alone to Jodhpur which is approximately 350 kilometers away

from Churu to defend the case filed by the respondent husband. It

is further argued that two cases filed by the petitioner under

Sections 12 & 23 of the Protection of Women from Domestic

Violence Act, 2005 and under Section 125 Cr.P.C. seeking

maintenance are pending consideration before the Chief Judicial

Magistrate, Churu and Family Court, Churu respectively. Learned

counsel next contended that while considering transfer in

matrimonial matters, wife's convenience must be seen. In this

regard, learned counsel has relied upon a recent decision of the

Hon'ble Supreme Court in N.C.V. Aishwarya Vs. A.S.Saravana

Karthik Sha (AIR 2022 Supreme Court 4318). In these facts

[2023/RJJD/005603] (3 of 6) [CTA-158/2021]

and circumstances and relying upon the aforesaid decision, it is

submitted that in the interest of justice, the case filed by the

respondent-husband at Family Court No.1, Jodhpur deserves to be

transferred to Family Court, Churu.

5. A reply to the transfer application has been filed on behalf of

the respondent-husband opposing the prayer for transfer of the

case. It is submitted that the petitioner is well educated lady

having qualification of BA and MA and does not require support of

anyone. It is argued that the petitioner has two real brothers

namely Mehtab Singh employed in Indian Air Force and Monu

working as LDC in Collectorate, Churu and her father is employed

in a private coaching centre and petitioner herself is earning

income by tuition. According to the respondent, two cases filed by

the petitioner are already pending at Churu, and therefore, if the

present matter is transferred, it would be difficult for him to

attend the different dates of hearing in all these matters as he is

employed in Forest Department where he does not get leave.

6. Learned counsel for the respondent has also relied upon the

judgment of this Court in Smt. Jyoti Sarangdawot Vs. Kamlendra

Singh decided on 4.10.2017, and decisions of Hon'ble Supreme

Court in Neelam Bhatia Vs. Satbir Singh Bhatia (2004 (13) SCC

436), Teena Chhabra Vs. Manish Chhabra (2004 (13) SCC 411),

Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends

Education Trust & Ors. (AIR 2008 SC 1333) and in Preeti Sharma

Vs. Manjit Sharma (2005 (11) SCC 535). In most of these

decisions, while disposing of the transfer petition, directions have

[2023/RJJD/005603] (4 of 6) [CTA-158/2021]

been issued to reimburse the expenses for travel, companion and

stay to the petitioner-wife therein. On the aforesaid submissions,

learned counsel for the respondent has implored this Court to

dismiss the transfer petition.

7. I have carefully considered the arguments advanced by

learned counsel for the parties. In the instant case, admittedly,

the petitioner is staying with her father at Churu. It is also not in

dispute that apart from a case filed under Sections 12 & 23 of the

Protection of Women from Domestic Violence Act, 2005 at the

instance of the petitioner against respondent as aforesaid, an

application preferred by the petitioner against the respondent-

husband under Section 125 Cr.P.C. seeking maintenance before

the Family Court, Churu is pending consideration. According to the

petitioner, she being a young lady and is not having sufficient

means of income to bear the travelling expenses etc. as she is

totally dependent upon her father. It is also the stand of the

petitioner that no male member is there to accompany her for

travelling, therefore, it is very difficult and unsafe to travel

approximately 350 kilometers all alone from Churu to Jodhpur to

attend the dates of hearing in the divorce petition filed by her

husband.

8. Though it is asserted on behalf of the respondent-husband

that the petitioner is having two brothers and father who can

accompany her to Jodhpur for attending the dates of hearing,

however, according to the respondent himself the brothers of the

petitioner are employed in Indian Air Force and Collectorate,

[2023/RJJD/005603] (5 of 6) [CTA-158/2021]

Churu and father is employed in Private Coaching Center. So far as

the hardship of the respondent in attending the case preferred by

him if transferred to Churu is concerned, it can be sorted out by

directing the Family Court, Churu to give common dates of hearing

in both the matters; one instituted at the instance of the petitioner

under Section 125 Cr.P.C. pending in that Court and the another

Case No. 680/2020 filed by the respondent-husband.

9 Further, it is settled law that while considering transfer of

case in matrimonial proceedings instituted by the husband, the

convenience of the wife is to be looked into. In this regard,

recently, Hon'ble the Supreme Court in the matter of N.C.V.

Aishwarya Vs. A.S.Saravana Karthik Sha (supra), while

considering transfer of matrimonial case under Section 24 CPC,

has observed as under:-

"The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer."

10. Looking to the facts and circumstances of the case, the

settled position of law by the Hon'ble Supreme Court in the matter

of N.C.V. Aishwarya (supra), and the discussion made herein

above, the transfer application is allowed. It is ordered that Case

[2023/RJJD/005603] (6 of 6) [CTA-158/2021]

No. 680/2020 pending in the court of Family Court No.1, Jodhpur

titled as 'Shimbhu Singh Vs. Monika Kanwar' be transferred to the

Family Court, Churu. The Family Court No.1, Jodhpur is directed to

send the record of the aforesaid case to the Family Court, Churu

immediately. The parties are directed to appear before the Family

Court, Churu on 13.3.2023. The Family Court, Churu is directed to

give common dates of hearing in both the matters i.e. the Case