JUDGMENT
R.K. Dash, J.
1. This is a petition under Section 24 of the Code of Civil Procedure, 1908 filed by the petitioner, wife of the opposite party, for transfer of the divorce proceeding in O.S.No. 27 of 1995 from the Court of the Civil Judge (Senior Division), Jeypore, to that of Civil Judge (Senior Division), Bhubaneswar, to be tried analogously with O.S. No. 339 of 1995 which has been filed by her claiming separate residence and maintenance from the opposite party.
2. The marital abode of the petitioner and the opposite party, the two spouses of erstwhile royal family of Jeypore, is in troubled water. Their marriage was celebrated at Bhubaneswar in the residence of the petitioner’s father and the last place of residence of the couple was at Jeypore. Two children were born to them in their wedlock who are presently in the care and custody of the petitioner. The opposite party has filed O.S. No. 27 of 1995 for dissolution of marriage on the ground, the petitioner has been affected by mental disorder for which he cannot reasonably be expected to live with her. The petitioner, on the other hand, has approached the Civil Judge (Senior Division), Bhubaneswar, in O.S. No. 339 of 1995 claiming separate residence and maintenance for herself and her minor children. According to the petitioner she alongwith the minor children has been residing in her father’s residence at Bhubaneswar. She has no independent source of income and is totally dependent on her father. So financial implication in visiting Jeypore for the purpose of fighting out the litigation on all the dates will cause great hardship to her. Added to that, Jeypore being far off from Bhubaneswar and there being no place of residence, it would be practically impossible for her to cover up such long distance on all dates. Moreover, she cannot leave her minor children even for a day and proceed to Jeypore. Therefore, the Court in exercise of power conferred by Section 24 of the Code of Civil Procedure should transfer the matrimonial proceeding pending in the Court of Jeypore to the Court of Bhubaneswar where the proceeding for separate residence and maintenance initiated by her is pending for adjudication.
3. The opposite party has filed counter challenging the petitioner’s prayer for transfer of the proceeding from Jeypore Court. It is urged that the petitioner has been prosecuting the proceeding with aid and assistance of her father and so, there will be no financial constraint for her to attend the Court at Jeypore and fight out the case. Otherwise also she is financially sound to meet the litigation expenses, inasmuch as when she left opposite party’s house, she brought a lot of ornaments presented to her at the time of marriage.
4. Much arguments have been advanced by the learned Counsel representing the parties. Mr. Mohanty, Counsel for the petitioner, has contended that in the peculiar facts and circumstances of the case, it would be just and proper for the Court to exercise discretion in favour of the petitioner and order for transfer of the suit from the Court of Jeypore to that of Bhubaneswar. Controverting the aforesaid submission, Mr. N.C. Panigrahi, Counsel for the opposite party, has urged that it is for the opposite party to choose one of the several Forums to initiate the proceeding and he having chosen the Jeypore Court to get the marriage dissolved by decree of divorce, without there being compelling reasons that right cannot be interfered with and the proceeding cannot be transferred at the desire of the petitioner.
5. The power vested in the High Court under Section 24, C.P.C, is comprehensive and discretionary. The discretion to be exercised, as we all know, is a judicial discretion based on sound reasonings. While considering the question of transfer/particularly in matrimonial proceedings, the disadvantageous situation of the wife cannot be overlooked. It is all the more necessary, as in the present case, where the petitioner, according to the opposite party, is mentally infirm. Moreover, she being financially handicapped has to depend upon her father to meet the legal expenses. Not only that, it will be hazardous for her to travel fairly a long distance and to obtain accommodation at Jeypore. On the other hand, if the opposite party is asked to attend the Court at Bhubaneswar in connection with the legal proceedings, it may not be at all difficult for him. Of course, he may face some inconvenience, but it will not be an impossibility as in the case of the petitioner. It is to be remembered that assurance of fair trial is the first imperative of dispensation of justice and the central criterion for the Court to consider when motion for transfer is made. So when the ends of justice so demand, the Court will be well within its jurisdiction to exercise discretion in favour of the party who has applied for transfer of the case from one Court to the other. In course of argument the learned Counsel for the opposite party though cited a number of decisions, but to avoid proliferation it would be sufficient to refer to one reported in A.I.R. 1990 Supreme Court 113, Dr. Subramaniam Swamy v. Ramkrishna Hegde. Much emphasis was laid on the observation of their Lordships that mere convenience of the parties or any one of them may not be sufficient for exercise of power and it must be shown that the trial in the chosen Forum would result in denial of justice. There can be no dispute about the said legal proposition and mere inconvenience of a party cannot weigh with the Court to exercise discretion in his/her favour. But if the inconvenience to fight out the case would result in denial of justice, in that case the Court cannot be said to be denuded of its power to transfer the case to the Court where he or she would be able to defend the case. This is the cardinal principle of law as decided by the Apex Court in the aforesaid case.
6. Learned Counsel Mr. Panigrahi in course of argument submitted that if at all the Court considers that it is a fit case for transfer, then the same be transferred to a middle place, that is, to the Court of the Civil Judge (Senior Division), Berhampur, which would be convenient to both parties. This suggestion is not acceptable for the same reason that the petitioner cannot move out alone from Bhubaneswar to attend the Court at Berhampur, the distance between Bhubaneswar and Berhampur being more than 200 kilometres, particularly when she has no independent sourse of income to meet the legal expenses and the expenses for the journey.
7. Considering the submissions made at the Bar and keeping in view the facts and circumstances of the case, I am of considered opinion that it is a fit case where the discretion should be exercised in favour of the petitioner to transfer the matrimonial proceeding (O.S. No. 27 of 1995) pending before the Civil Judge (Senior Division), Jeypore to the Court of the Civil Judge (Senior Division), Bhubaneswar before whom the proceeding in O.S. No. 339 of 1995 at the instance of the petitioner is pending for adjudication. Accordingly prayer is allowed and the proceeding in O.S. No. 27 of 1995 is transferred from the Court of the Civil Judge (Senior Division), Jeypore to the Court of the Civil Judge (Senior Division), Bhubaneswar. In the circumstances, there shall be no order as costs.