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MCA/201520/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR TRANSFER No. 2015 of 2008
==========================================
SHARMIKABEN
D/O GOVINDBHAI RAGHABHAI PATEL W/O NILAY
Versus
NILAY
BABULAL PATEL
==========================================
Appearance
:
MR DIPAK R DAVE for
Applicant
MS DHARA M SHAH for
Respondent
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/08/2008
ORAL
ORDER
Heard
Mr.Dipak R. Dave, learned advocate for the applicant and Ms.Dhara M.
Shah, learned advocate for the respondent.
The
present application is filed by the applicant under Section 24 of
the Civil Procedure Code seeking transfer of Hindu Marriage Petition
No.52 of 2007 filed in the Court of Additional Senior Civil Judge,
Gandhinagar, Camp at Kalol.
It
is the case on behalf of the applicant that she married with the
respondent on 07.02.2004 and, thereafter, she has started residing
with the respondent at Kalol. It is submitted that initially, she
was treated fairly, but subsequently, the respondent started
harassing the applicant and, thereafter, she was compelled to leave
the matrimonial home and stay at her parental home. It is submitted
that the applicant filed Hindu Marriage Petition No.414 of 2007 in
the Family Court, at Ahmedabad for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act and moment the notice was
issued upon the respondent. With a view to harass the applicant, the
proceedings have been initiated at Kalol Court for divorce being
Hindu Marriage Petition No.52 of 2007 by the respondent. Therefore,
it is requested to transfer the proceedings of Kalol Court being
Hindu Marriage Petition No.52 of 2007 to the Family Court, at
Ahmedabad. Mr.Dipan R. Dave, learned advocate for the applicant has
relied upon the decision of the Hon’ble Supreme Court in case of
Sumita Singh Vs. Kumar Sanjay, reported in AIR 2002 SC
396.
The
present application is opposed by Ms.Dhara M. Shah, learned
advocate for the respondent by submitting that there is no much
distance between Kalol and Ahmedabad and even examination-in-chief
of the husband, respondent herein is already over in the proceedings
before the Kalol Court.
Heard
the learned advocates appearing on behalf of the respective parties.
At
the outset it is required to be noted that the proceedings have been
initiated by the applicant in first point of time at Family Court at
Ahmedabad for restitution of conjugal rights under Section 9 of
the Hindu Marriage Act and immediately, thereafter, the respondent
husband has initiated proceedings at Kalol Court for divorce under
Section 13 of the Hindu Marriage Act.
It
is not in disputed that the applicant wife is residing at
Ahmedabad. Considering aforesaid, proceedings and even to avoid any
further contradictory conflicting orders passed by the two Courts
below, it will be in the fitness of things to exercise powers under
Section 24 of the Civil Procedure Code to transfer the proceedings
from Kalol Court to Family Court, Ahmedabad with a direction that
both the proceedings are heard together.
Under
the circumstances and for the reasons stated above, the application
succeeds. Hindu Marriage Petition No.52 of 2007 filed in the Court
of leaned Additional Senior Civil Judge, Gandhinagar camp at Kalol
is hereby ordered to be transferred to Family Court, Ahmedabad and
is directed to be heard along with Hindu Marriage Petition No.414 of
2007 pending in the Court of Family Court at Ahmedabad. It will be
open for the respective parties to submit before the Family Court at
Ahmedabad for expeditious hearing of the aforesaid proceedings and
the same shall be considered by the Family Court positively. There
shall be no order as to costs.
[M.
R. SHAH,J.]
vijay
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