MCA/1726/2008 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR TRANSFER No. 1726 of 2008 ========================================================= JAYSHREE ASHOKKUMAR KANSARA - Applicant(s) Versus ASHOKKUMAR PRANLAL KANSARA - Opponent(s) ========================================================= Appearance : MR PREMAL S RACHH for Applicant(s) : 1, RULE SERVED for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD Date : 05/09/2008 ORAL ORDER
1. Heard
learned advocate Mr. Premal S. Rachh appearing on behalf of
applicant.
2. The
present application is filed by the wife with a prayer to transfer
the proceedings of Hindu Marriage Petition No.31 of 2008 from the
Court of 3rd Additional Senior Civil Judge, Valsad to the
Court of Senior Civil Judge, Jamnagar in the interest of justice.
3. The
notice initially issued by this Court is served to the respondent,
but, no appearance is filed by respondent. Thereafter, rule is issued
by this Court which has been also served to the respondent, but, no
appearance is filed by the respondent. Therefore, today, this matter
is listed for final hearing. Accordingly, on being merits of learned
advocate Mr. Rachh it has been taken for final hearing.
4. Considering
the submissions made by learned advocate Mr. Rachh and averments made
in this application that Hindu Marriage Petition is filed by the
husband being No.31 of 2008 being a direct reaction of earlier two
proceedings filed by the wife. One proceeding is filed by the wife
under Section 125 of the Code of Criminal Procedure claiming the
maintenance from the husband which was granted by the competent Court
in favour of wife and minor son. That order was challenged in
revision by the husband. Even though, Revision Application No.140 of
2007 is also rejected by Sessions Court, Jamnagar. Thereafter, one
application under Section 125(3) of Cr.P.C. is filed by the wife
against the husband for recovering the arrears of maintenance amount
and other relief before the J.M.,F.C. Court, Jamnagar which is
pending. Meanwhile, aforesaid Hindu Marriage Petition was filed by
husband.
5. The
relevant averments are made in Para 2/6 and Para 2/7 which are quoted
as under :
ýS2/6. The
applicant humbly submits that in the divorce petition filed by
respondent before Ld.Senior Civil Judge, Valsad, the applicant has to
engage an advocate to represent her case and also has to remain
personally present at evidence stage. The applicant submits that for
engaging an advocate, the applicant submits that for engaging an
advocates, the applicant has to spend huge amount towards fees and
since the applicant has not received amount even by way of
maintenance form her husband-respondent herein, the applicant finds
it very difficult to attend the matter at Valsad by engaging any
advocate. It is relevant to note that applicant is put to great
hardships and is finding it very difficult to maintain and manage
several routine expenses including educational expenses of her minor
son. It is pertinent to note that applicant is the only daughter of
her parents and father of the applicant has expired way back in the
year 1980. At present, in absence of any financial support from
respondent, applicant is depended on mother of applicant who is
serving in Medical College, Jamnagar. But, even the mother of
applicant is finding it difficult to maintain applicant and minor son
as she is suffering from Cancer and other diseases due to old age.
Annexed hereto and marked as Annexure ‘E’ is the copy of Certificate
issued by Doctor.
2.7 It
is submitted that proceedings before civil Court, Valsad are at a
very initial stage wherein notice is issued to the applicant making
it returnable on 16.05.2008. Since the applicant is facing great
financial hardships for the reasons as narrated above, it is very
difficult for the applicant to attend the proceedings at Valsad by
travelling all the way from Jamnagar.ýS
6. In
view of aforesaid averments made in this application and considering
the fact that no counter is filed by the respondent and also
considering the hardship which has been faced by the applicant ý
wife and proceedings which has been initiated by the husband
apparently just to harass the wife, so, wife may not press the
application filed under Section 125(3) of the Code of Criminal
Procedure. So, Hindu Marriage Petition is nothing but just to harass
the wife, respondent has filed proceedings against the wife at
Valsad. Therefore, this Court is satisfied that prayer made by
applicant is genuine and when two proceedings were initiated by the
wife at Jamnagar and not objected by the husband to appear at
Jamnagar, then, there is no other purpose to file the proceedings at
Valsad except to cause inconvenience and harassment to the wife of
respondent. Looking to the financial condition and minor son, it is
very difficult for the applicant to attend the proceedings at Valsad
from Jamnagar for such a long distance. Therefore, in the interest of
justice, order is passed by this Court.
7. Accordingly,
prayer made in this application in Para 6(B) is granted.
8. The
Hindu Marriage Petition No.31 of 2008 is transferred from the Court
of 3rd Additional Senior Civil Judge, Valsad to the Court
of Senior Civil Judge, Jamnagar and it is directed to Senior Civil
Judge, Jamnagar to proceed with Hindu Marriage Petition No.31 of 2008
from the stage onwards at which the matter is pending before the
Senior Civil Judge, Valsad.
9. Accordingly,
rule is made absolute with no order as to costs.
10. Direct
service is permitted.
[H.K.
RATHOD, J.]
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