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RAJASTHAN HIGH COURT
Rekha Borana, J.
Mona Modi – Appellant
versus
Neeraj Modi – Respondent
S.B. Civil Transfer Appeal No.198 of 2022
Decided on 21.2.2023
Counsel for the Parties:
Hemank Vaishnava, Advocate, Love Jain, Advocate, Urmila Chouhan, Advocate
IMPORTANT POINT
It is wife’s convenience which must be looked at while considering transfer matters.
Headnote:
Civil Procedure Code, 1908 – Section 24 – Guardians and Wards Act, 1890 – Sections 7 and 12 – Transfer petition – Petition seeking custody of minor children – It is wife’s convenience which must be looked at while considering transfer matters – When two or more proceedings are pending in different Courts between same parties which raise common question of fact and law, and when decisions in the cases are interdependent, it is desirable that they should be tried together by same Judge so as to avoid multiplicity in trial or same issues and conflict of decisions – In present matter, Court is more concerned about convenience/welfare of child in comparison to convenience of any of parties – Transfer Petition allowed. (Paras 8 and 9)
Result: Transfer Petition allowed.
JUDGMENT
Rekha Borana, J.—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.
2. 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.
3. 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.
4. 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:—
1. 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)
2. Anju Boyal vs Ravindra Kumar; SB Civil Transfer Petition No.87/2020 (decided by this Court on 11.03.2022).
3. Smt. Gayatri Devi Vs Raghuveer Singh; SB Civil Transfer Petition No.112/2015 (decided by this Court on 28.08.2019).
5. Per contra, learned counsel for the respondent submitted that the present one is not a case of harassment of the wife but of 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
