KANTA MALI Vs. SUNEEL MALI

JUDGEMENT

(1.) THIS transfer application filed by Smt. Kanta Mali is against the order dt. 01.12.2001 passed by District Judge, Churu in Civil Misc. Case No. 30/2009 whereby the learned District Judge, Churu declined to transfer the case bearing No. 23/2009 from the Court of Additional District Judge, Sujangarh to the Court of District Judge, Churu. The applicant is facing a trial of a divorce petition filed by her husband before the Court of Additional District Judge, Sujangarh. The allegation of the divorce petition is that the marriage between the parties took place on 25.01.2005 and out of their wedlock, a male child Manish was born. It has also been averred that the wife has deserted the petitioner without any reasonable cause. The said divorce petition was listed on 25.07.2009 before the trial Court and it was adjourned to 21.08.2009. On 25.07.2009 the father -in -law of the present applicant threatened her in the Court premises regarding her arrest along with her father, therefore, she filed transfer petition before the Court of District Judge, Churu to get the matter transferred to Churu but the learned District Judge, Churu dismissed the transfer application vide impugned order dt. 01.12.2011.

(2.) THE learned counsel for the applicant contended that the learned District Judge, Churu while deciding Civil Misc. Case No. 30/2009 failed to consider this aspect that the applicant is having a male child, namely, Manish, who is about 5 to 6 years old and this fact has not been denied by the non -applicant. Further, the learned counsel for the applicant contended that it has been specifically pleaded in the transfer application that applicant is not the earning member and further pleaded some facts regarding the incident which took place on 25.07.2009. The learned District Judge while deciding the application recorded its finding that the applicant had not filed any complaint before the police or before the concerned Presiding Officer of the Court regarding any threat or misbehave of her father -in -law and further it has been held that there are several cases pending between the parties and it cannot be said that the applicant is not conscious about her right and merely on the basis of surmises and conjunctures, a case cannot be transferred from one Court to another; but the learned District Judge did not take note of this fact that while attending the Court, the applicant has to bring her minor son from Churu to Sujangarh and further, she is not the earning member and therefore, the order of the learned District Judge requires to be set aside. Learned counsel for the applicant has relied upon the judgments of this Court passed in (1) S.B. Civil Transfer Petition No. 69/1994; Smt. Shakuntla vs. Chhaganlal, reported in, 1996 DNJ (Raj.) 657; (2) S.B. Civil Transfer Application No. 25/1998; Gayatri (Smt.) vs. Nand Kumar, reported in, 2001 DNJ (Raj.) 64; (3) S.B. Civil Misc. Transfer Petition No. 1/2009; Sudesh Agarwal (Smt.) vs. Sanjay Gupta, reported in, 2009 (3) DNJ (Raj.) 1683.

(3.) I have considered the rival contentions raised by counsel for both the parties and also perused the order passed by the learned District Judge as also the judgments cited by counsel for the applicant.