BRIEF

Jyoti Bhargava v Jitendra Bhargava

Tranfer Petition

Facts

1. The instant transfer petition was filed by the petitioner to transfer 3 cases
filed by the respondent against the petitioner in the Family Court at
Shriganganagar, Rajasthan. The following are the cases filed by the
respondent–
a. A petition under section 9 of the Hindu Marriage Act for restitution
of conjugal rights. [Filed – 08.01.2020/ case no. 46/2020]
b. A petition under section 25 of the Guardian and Wards Act for
custody of the son of the respondent. [Filed – 05.02.2020/ Case.
No. 2/2020]
c. A Petition under section 12 of the Guardian and Wards Act. [Filed
05.02.2020 case no. 3/2020]
2. The petitioner has filed an application under section 12 of the Protection
of Women from Domestic Violence Act, 2005 on 24.01.2020 at the court
of CJM, Jhajjar.
3. The petitioner and the respondent got married according to Hindu Rites
and Customs on 25.07.2015 at Village Beri, District Jhajjar, Haryana.
4. A son was born to the petitioner and the respondent on 07.05.2016.
5. The petitioner and respondent resided in Sriganganagar for some time.
6. The petitioner left her matrimonial home and returned to her paternal
home in Jhajjar along with her son on 06.12.2019 (the petitioner in her
DV application contends she left sometime surrounding 25.07.2019; the
respondent in his RCR petition claims that she left in April 2019; the
 respondent in his section 25 custody application claims the date of
leaving as 06.12.2020), aggrieved by which the respondent filed the
abovementioned cases at Sriganganagar Family Court.

Factual Contentions raised by the Petitioner

1. The petitioner claims that the respondent subjected her to cruel and ill
treatment (physical and mental). She alleges that the respondent is a
drunkard who would beat her mercilessly and forced her to have
unnatural sexual relations.
2. The petitioner further alleges that the respondent and his family would
pressurize the petitioner for dowry, demanding a luxury car and Rs.
10,00,000/-. Further, the petitioner alleges that her father paid the
respondent’s family Rs. 2,00,000/- upon constant demands for dowry.
Further, the petitioner alleges that her ornaments were sold by the
respondent.
3. The petitioner also alleges that the respondent’s brother made
inappropriate and lewd advances towards her.
4. Further, the petitioner alleges that the respondent has an active extra-
marital relationship,
5. The petitioner alleges that on 25.07.2019, the respondent’s family
physically assaulted her for dowry. Thereafter, the petitioner alleges that
she was ousted from her matrimonial home along with her son by the
respondent.

Factual Contentions Raised by the Respondent

1. The respondent alleges that he had sound relations with the petitioner and
that no dowry had been exchanged at any point in time between them.
2. The respondent alleges that after some time had passed to the marriage,
the petitioner, under pressure and influence from her family started
fighting with the respondent.
3. On the petitioner’s request, the respondent moved outside his parents’
house along with the petitioner to reside in Sriganganagar.
4. The petitioner conveyed to the respondent that she wanted to leave her
matrimonial house and return to her parental house. On April 2019, she
left her matrimonial house.
5. The Panchayat at Sriganganar tried to persuade the petitioner to return to
the matrimonial house, however the petitioner and her family refused to
comply.

Grounds posited in the Transfer Petition.

1. The petitioner claims that it is not feasible for her to travel to

Sriganganagar for the court proceedings as it is 366 km away from her
residence in Jhajjar. It is not possible for her to make this 16 hour (to-
and-fro) journey with a four year old child.
2. The petitioner claims that the respondent has filed the case at Sringanagar
although he resides in Jhunjhunu (relying on the address mentioned by
the resp. in his writ petition filed before the Rajasthan HC). It is the
petitioner’s contention that this is indicative of the fact that the resp. has
only filed the cases at Sringanagar to harass the petitioner.
3. The petitioner claims that all cases could be heard at Jhajjar where a case
regarding section 12 DV Act is already going on between the parties.

Grounds upon which the Transfer Petition is resisted by the Resp.

1. That the petitioner is misusing the provisions of law (section 25 CPC/

Transfer of cases) to vitiate the ends of justice.
2. That the petitioner is trying to mischaracterize the case by contending
untrue factual position. The petitioner’s counsel admitted in front of the
Court that the Resp. is the owner of a coaching institute, who is trying to
use his superior financial position to drag the resp. in litigation far from
her place of residence. This is incorrect as the resp. is merely a teacher at
a coaching institute.
3. The transfer petition is only a means to delay the proceedings in the cases
filed at Sriganganagar and the Family Court at Sringanganagar has the
jurisdiction to hear the matters.
4. The petitioner stays with her mother, brother and grandmother who are
healthy and well and therefore can take care of the petitioner’s son when
she has to travel to Sriganganagar for the cases filed there. Therefore, the
petitioner’s contention that it is not feasible for her to make a 16-hour (to-
and-fro) journey along with her son is immaterial.
5. The petitioner is engaging in forum-shopping and the forum conveniens
is in favor of the resp.
6. The petitioner’s contention that the resp. has only filed the petitions to
harass the petitioner as he does not stay at Sriganganagar is wrongful in
law and fact. The Family Court of Sriganganagar has the jurisdiction to
hear the case. Moreover, the only reason the petitioner gave his
Jhunjhunu address in his Writ Petition was because due to the COVID-19
pandemic he had temporarily shifted to Jhunjhnu.
 Interim Application for Custody

Grounds on which IA is posited

1. Family Court at Sriganganagar passed an interim order dated 19.06.2020

in suit no. 3/2020, wherein the Petitioner was directed to make
arrangements so that the respondent may talk to his son twice a day
through video call.
2. The petitioner is not allowing the resp. to talk to the son even after the
abovementioned orders. The resp. made several calls on 19.06.2020
which were not answered. Further, respondent’s son is being brainwashed
in such a manner that he refuses to recognize his father (using language
like “tu kaun hai”.
3. The environment in which the resp.’s son is being raised is not healthy for
the child, for which he is concerned. (Annexure R/2; p. 16)
4. That the petitioner is staying with her mother, brother and grandmother.
The mother and brother of the petitioner are the only earning members in
the household. The grandmother of the petitioner is old and ail and
therefore, requires high medical expenses. In this light, the economic
situation of the household is not adequate for the proper upbringing of the
child.
5. The child suffers from Brucella Disease, for which he is not being treated
in the petitioner’s custody. The respondent is not able to follow-up about
his child’s health as he is not being allowed to contact the child.
Moreover, the petitioner’s town of residence is underdeveloped and has
no proper medical facilities. Therefore, the child’s health would benefit if
he stays with the resp. (Annexure R/3; p. 17)
6. The child was attending playschool when he was in the custody of the
resp. However, the resp. has no knowledge of the education and
schooling being provided to the child as he is not allowed to contact him.
 Moreover, Jhajjar does not have schooling facilities of good standard.
Further, the resp. is a teacher by profession and therefore can best guide
the child in his education.
7. The resp. has filed petitions under section 12 and 25 of the Guardian and
Wards Act at Sriganganagar which have been stayed by the SC vide order
dated 07.08.2020. This has delayed the proceedings and aggravated the
resp.’s concern for his child as he is not being raised in a proper
environment.
8. The father is the natural and primary guardian of a minor ward. It is only
after the father becomes incapable of taking care of the minor, the mother
becomes a guardian. This is implicit under section 19 (b) of the Guardian
and Wards Act and section 6 (a) of the Hindu Minority and Guardianship
Act. This is also posited by the Supreme Court in Jijabai Vithalarao Gajre
v Pathankhan (1970) 2 SCC 717.
9. The resp. has neither the physical nor the constructive custody of the
child as he is unable to talk to the child. Therefore, he the resp. is only
left with the remedy under Section 25, Guardian and Wards Act. Section
25 proceedings have been stayed at Sriganganagar.
10.The Supreme Court in Yashita Sahu v State of Rajasthan & ors. (2020) 3
SCC 67 has stated that it is a child’s basic human right to have the love
and affection from both parents. It is indispensable for a minor in early
years to form familial relations with both his parents as it affects the
child’s overall development as a human being. Further, the court stated
that even if custody rests with one parent, the other must have adequate
visitation rights.
11.The paramount consideration for determining custody is the welfare of
the child. In the present case the petitioner is not fit for holding custody
of the child for the myriad reasons abovementioned. Moreover, the father
is fit to look after the child and provide him with a healthy environment.