1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Smt. Jaiwanti Gahija Vs. Ashok Kumar Sharma S.B. CIVIL TRANSFER APPLICATION NO.18/2009. UNDER SECTION 24 OF THE CPC. DATE OF JUDGMENT: 5th October, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. Shailesh Prakash Sharma for the appellant. Mr. Anurag Sharma for the respondent. BY THE COURT: This transfer petition has been filed by the wife- Smt. Jaiwanti Gahija against her husband Ashok Kumar Sharma under section 24 of the Code of Civil Procedure for transferring the divorce petition pending before the District Judge, Alwar to the learned Judge, Family Court/ District Judge at Kota. Briefly stated, the facts for the disposal of the present transfer application are that the marriage between the parties was performed at Alwar on 28.6.2002. After marriage, the petitioner and the respondent lived together for some time. The petitioner-wife is working as LDC in the District Court at Kota whereas the respondent-husband is a teacher at Kotkasim District Alwar. In the year 2008, a complaint was filed by the petitioner under section 498-A/406 IPC in the court of 2 Additional Chief Judicial Magistrate (Junior Division) No.3, Kota (North) which was sent for investigation to the concerned police station where FIR No.3/2008 was registered. Subsequently, on a compromise being arrived at between the parties, final report was given by the police on 31.1.2008. In pursuance of the compromise, both the parties started living together at Kota but after some time the respondent started making demand for a house and also insisted the petitioner for dowry and thereafter left the petitioner-wife and filed a divorce petition at Alwar under section 13 of the Hindu Marriage Act for dissolution of marriage levelling various allegations against the petitioner-wife. The petitioner-wife also filed a protest petition in the court of Judicial Magistrate No.3, Kota for taking cognizance in the matter. The learned Magistrate passed an order on 14.11.2008 directing the investigating agency to investigate on the points mentioned by the complainant wife in the protest petition including the instances which took place after filing of the final report. The order passed by the magistrate was challenged before the competent court by the husband. The allegation of the petitioner-wife is that in the past also the husband-respondent ill-treated her and intentionally filed petition seeking divorce at Alwar to harass the petitioner- wife and she has apprehension that some untoward incident may take place at Alwar if she goes there to attend the court proceedings in the divorce petition. It is also alleged that it will 3 be too expensive for her to go to attend the court proceedings on each and every date of hearing and also she has to look after her old parents, therefore, in this transfer petition a prayer has been made to transfer the divorce petition from Alwar to Kota. A reply to the transfer petition has been filed by the husband-respondent denying all the allegations levelled against him of making demand of dowry. It has been alleged in the reply that the police is under the influence of the petitioner and she is in a position to exert pressure as she is employed as LDC in the District Court at Kota. It is also alleged that in spite of filing divorce petition nearly more than a year, it could not become possible to get the notice served on her at Kota because she is managing everything at Kota to avoid service of summons and notices. It is also alleged that he was asked by the plice and pressure was exerted on him to sign the compromise wherein it was mentioned that he will not make any demand of dowry in future and will not ill-treat her. It is also alleged that in case the divorce petition is transferred to Kota, it would not be possible to get fair justice at Kota. It is also contended in reply that petitioner-wife is an earning hand, therefore, there is no difficulty for her to bear expenses in attending the court proceedings. In the rejoinder the allegations made in the reply have been denied. 4 I have heard learned counsel for both the parties and carefully perused the material available on record. It has been the contention of the learned counsel for the petitioner-wife that in a very short span of time after marriage, the husband-respondent started ill-treating her and the demand of dowry was also made. It is contended that before marriage it was agreed by the husband that he would stay at Kota after his transfer from Alwar as he is a teacher in the government school but after some time of marriage husband denied and started harassing her. It is contended that it became difficult for her to bear mal-treatment given by the husband after marriage. In January, 2008 she filed a complaint in the court of Magistrate at Kota and the same was sent for investigation to the concerned police station. During investigation, the husband came to Kota and tendered apology for his past conduct and persuaded her to compromise the matter. According to the lerned counsel, the petitioner wife thereafter compromised the matter and submitted the same before the police and the police filed final report but soon after the final report was filed, a divorce petition was filed. It is contended that it is not safe for her to attend the court at Alwar and the petition which has been filed by the husband seeking divorce either should be transferred to Kota or to some other place and to attend the court proceedings, the petitioner-wife should also be paid 5 expenses by the husband. On the other hand, it has been vehemently contended that the final report would reveal that a false and concocted story was cooked up in the complaint as the last line of the final report will go to show that the complaint made was false one. It is contended that in case the divorce petition is transferred at Kota, he has no hope of justice as she is an influential lady and has uptil managed to avoid service of summons/notice in the divorce petition and the summons have been returned back unserved. Learned counsel for the respondent submits that the respondent is agreeable in case the divorce petition is transferred to a place other than Kota. It has also been contended that in case divorce petition is transferred from Alwar to Kota, then it will be appropriate to transfer the divorce petition to Jaipur as Jaipur is a neutral place. I have carefully considered the submissions made before me. The Hon'ble Apex Court in the case of Anindita Das Vs. Srijit Das- (2006)9 SCC 197, it has been observed that on account of filing transfer petitions by women, a lenient view was being adopted which resulted in large number of transfer petitions filed in the Supreme Court, therefore, the petition moved for transfer is required to be considered on its own merits. 6 In another case of Anju Vs. Pramod Kumar- (2005) 11 SCC 186, both husband and wife filed transfer petitions. The wife filed the petition to transfer the case filed by her husband from Family Court, Agra to Family Court Nainital whereas husband filed a petition to transfer the case from Family Court Nainital to Family Court, Agra. The Hon'ble Apex Court observed in para 2 as under: “As both parties have expressed apprehension to go to the other place,it would be appropriate if the cases are tried at a neutral place. We, therefore, transfer the above mentioned cases to the District Judge at Bareilly (U.P.) who shall assign them to an appropriate court. With these directions, the transfer petitions stand disposed of.” After carefully examining the principles laid down in the above authorities and also after carefully examining the material available in the file, it is to be examined as to whether the divorce petition is required to be transferred at Kota where the petitioner-wife resides or the divorce petition is required to be transferred to a neutral place looking to the apprehension of both sides. It appears from the perusal of the allegations and counter-allegations made in the petition and reply thereto that soon after marriage there arose some misunderstanding between husband and wife which resulted initially in filing a complaint by wife under section 406/498A IPC and lateron that was compromised. As a result of compromise, final report was 7 submitted by the police and subsequently on filing of a protest petition, the Magistrate ordered to reinvestigate the matter on points directed by him and stated in the protest petition. It also appears that soon after filing of the final report, the divorce petition has been filed. It is also established and not in dispute that both husband and wife are working and both of them have their old parents to look after. It is also not in dispute that wife is LDC in District Court at Kota and service of summons/notice could not be effected on her, may be for any reason, and the husband is having an apprehension that he may not get justice at Kota and may be harassed there at Kota. It is not necessary for me to comment upon the genuinness of the allegations. It is suffice to say that both parties are having apprehension in case the divorce petition is tried either at Kota or Alwar. Learned counsel for the respondent submits that the divorce petition be transferred to a neutral place and the expenses to be incurred by the petitioner-wife in attending the court proceedings shall be borne by him, therefore, I am of the opinion that divorce petition pending before the District Judge, Alwar should be transferred to Judge, Family Court No.1, Jaipur and the expenses to be incurred by the petitioner in attending the court proceedings shall be borne by the respondent-husband. The expenses of stay and attending the court proceedings in the Family Court by the petitioner shall be determined by the Judge, Family Court, Jaipur and shall be paid by the 8 respondent-husband. In the result, this transfer application is partly allowed. The divorce petition filed by the husband and pending before the District Judge, Alwar stands transferred to the learned Family Court No.1, Jaipur as both the parties desire to get the divorce petition transferred at a neutral place. The expenses of travel and stay of the petitioner along with one companion on every visit when petitioner is required to attend the court at Jaipur, shall be borne by the respondent-husband. The expenses shall be determined in this regard by the learned Judge,Family Court no.1, Jaipur and shall be paid by the respondent-husband. (S.P.PATHAK) J. bblm