Rajasthan High Court - Jodhpur

Neelam Tailor vs Shri Nitin Verma on 18 October, 2023

Bench: Madan Gopal Vyas

[2023:RJ-JD:35691]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Transfer Appl. No. 185/2023

Neelam Tailor W/o Shri Nitin Verma, Aged About 35 Years, D/o Shri Vijay Kumar Chaparwal, R/o Near Poltury Farm Village- Hurda, Gulabpura, District Bhilwara (Raj.).

----Petitioner Versus Shri Nitin Verma S/o Shri Mukesh Verma, Aged About 38 Years, R/o 552-2, Dayanand Colony, Ramnagar, Pushkar Road, District Ajmer (Raj.). Pin Code 305001.

                                                                 ----Respondent


For Petitioner(s)          :    Mr. Ravi Bhansali, Sr. Advocate
                                Assistant by Mr. Shubham Modi
For Respondent(s)          :    Mr. NL Joshi
                                Mr. Kirti Joshi



            HON'BLE MR. JUSTICE MADAN GOPAL VYAS

                                 Judgment

DATE OF JUDGMENT                                                 18/10/2023

The present transfer petition under Section 24 of CPC has

been preferred by the petitioner-wife for transferring the case No.

206/2020 preferred by the respondent herein under Section 13 of

the Hindu Marriage Act 1955, from Family Court No.2, Ajmer to

the court of Adl. District & Sessions Judge, Gulabpura, District

Bhilwara.

2. Learned counsel for the petitioner submits that the petitioner

has already filed an application under Section 125 of Cr.P.C.

against the respondent before the court of ACJM, Gulabpura,

District Bhilwara. He further submits that an FIR for the offence

under Section 498A and 406 of the IPC has been filed by the

petitioner against the respondent wherein challan has already

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been filed and the matter is pending before the competent Court

at Gulabpura. It is further submitted that in the year 2019, an

application under Section 9 of the Hindu Marriage Act has already

been filed by the petitioner against the respondent. The

respondent filed the application under Section 13 of the Hindu

Marriage Act before Family Court No.2, Ajmer only in order to

harass and humiliate the petitioner and the petitioner being lady

having no source of income is unable to defend her case at Ajmer.

It is further submitted that the application under Section 9 of the

Hindu Marriage Act as well as the application under Section 13 of

the Hindu Marriage Act can be decided by the same court,

therefore, the application under Section 13 of the Hindu Marriage

Act may be transferred to the court of Addl. District & Sessions

Judge, Gulabpura, District Bhilwara. In support of his contentions,

learned counsel for the petitioner relied upon the judgment of the

Hon'ble Supreme Court delivered in the case of Ajay Lawania Vs.

Shobhna Dubey (2010) 15 SCC 354.

3. Learned counsel appearing for respondent opposed the

prayer made by the learned counsel for the petitioner. It is

submitted that the present transfer petition is not maintainable

before this Court as the petitioner sought transfer of application

under Section 13 of the Hindu Marriage Act, which is pending

consideration before the Family Court No.2, Ajmer and the

territorial jurisdiction of the Family Court No.2, Ajmer is with the

Jaipur Bench of this Court. Further, it is submitted that on several

dates, the petitioner has already appeared in the case and now

the application is pending at the stage of evidence. Learned

counsel for the respondent submits that the petitioner is highly

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educated lady having degree of M.Tech and can attend the

proceedings at Ajmer and the respondent is ready and willing to

bear her expenses for attending the court proceedings at Ajmer.

In support of his arguments, learned counsel for the respondent

relied upon following judgmentsL

(1) Anindita Das Vs. Srijit Das: Transfer Petition (Civil) No.191/2005, decided on 29.8.2005

(2) Neelam Bhatia Vs. Satbir Singh Bhatia : Transfer Petition (Civil) No.357/2004, decided on 30.8.2004

(3) Preeti Sharma Vs. Manjit Sharma : Transfer Petition (Civil) No.117-118/2004, decided on 29.4.2005

(4) Rajasthan High Court Advocates Association Vs. Union of India & Ors, reported in (2001) AIR (SCW) 1

(5) Neelam Vs. Dinkar Jangir (SB Civil Transfer Petition No.139/2016), decided on 21.2.2017

(6) Smt. Payal Vs. Rana Ram (SB Civil Transfer Petition No.3/2015), decided on 19.5.2015

(7) Krishina Veni Nagam Vs. Harish Nagam reported in AIR 2017 SC 1345

4. With respect to the preliminary objection of territorial

jurisdiction of this Court raised by the learned counsel for the

respondent, learned counsel for the petitioner submits that in

matrimonial matters the parties to the lis have right to seek

transfer of the case and this Court is having jurisdiction to transfer

the case in accordance with the provisions Section 24 of the Civil

Procedure Code. Learned counsel for the petitioner further

submits that the Hon'ble Supreme Court in the case of Vinisha

Jitesh Tolani @ Manmeet Laghmani vs Jitesh Kishore Tolani

2010(1) WLC (SC) 705 has observed that in the matrimonial

proceedings initiated by the husband against the wife, the

convenience of the wife has to be considered for contesting the

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suit, and accordingly the matrimonial proceedings ought to be

transferred where the wife is residing. It is further submitted that

the District Ajmer as well as Gulabpura, District Bhilwara obviously

falls in the State of Rajasthan. The court of Addl. District &

Sessions Judge, Gulabpura, District, Bhilwara comes in the

territorial jurisdiction of this Court, therefore, this Court may order

for transferring the application under Section 13 of the Hindu

Marriage Act from Family Court No.2, Ajmer to the court of Addl.

District & Sessions Judge, Gulabpura, District, Bhilwara. In

support of his contentions, learned counsel relied upon the

judgments of this Court delivered in the case of Smt. Tilak

Shekhawat Vs. Karan Singh Chouhan: SB Civil Transfer Petition

No.23/2022, decided on 10.11.2022 and in the case of Shilpa Vs.

Deepak Tiwari : SB Civil Transfer Petition no.133/2022, decided on

10.7.2023.

5. In Ajay Lawania Vs. Sbhobhna Dubey (supra), the Hon'ble

Supreme Court held as under:

"4. It is well settled that if two petitions are filed under the Act, one under Section 9 and the other under Section 13, then in order to avoid conflicting decisions, it is expedient that both the cases are heard by the same court. Evidence in the two cases should be recorded one after the other, arguments should be heard separately and thereafter, separate judgments should be delivered on one day."

6. Having regard to the facts and circumstances of the case and

the fact that the petitioner is a lady and the Hon'ble Supreme

Court in the case of Vinisha Jitesh Tolani @ Manmeet Laghmani

(supra) has held that in the matrimonial proceedings initiated by

the husband against the wife, the convenience of the wife has to

be considered for contesting the suit as well as in view of the fact

[2023:RJ-JD:35691] (5 of 5) [CTA-185/2023]

that the petitioner has already initiated proceedings against the

respondent at Gulabpura, District Bhilwara and an application

under Section 9 of the Hindu Marriage Act is pending in the Court

of Addl. District Judge, Gulabpura, District Bhilwara, this Court

deems it appropriate to transfer the petition under Section 13 of