JUDGMENT
K.M. Mehta, J.
1. Kiran S. Shekhari, applicant wife has filed this petition under Section 24 of the Code of Civil Procedure with a prayer that this Court may be pleased to direct to transfer the Hindu Marriage Petition No. 7/02 which is filed before the Civil Court at Bharuch Court to Family Court at Ahmedabad.
2. This being a matrimonial matter, I have called the parties in Chamber for settlement but the parties could not settle the matter amicably and hence I pass the following order:
3. The facts giving rise to this application are as under:
3.1 Marriage between Kiran S. Shekhari, applicant-wife with Tarun Malhotra respondent No. 1 husband was solemnised on 4th December, 1994. Out of the said wedlock, a boy born on 3rd December, 1997. It appears that thereafter some difference and dispute arose between the parties.
3.2 From the record it appears that somewhere on 17th June, 2001, the applicant wife filed a complaint under Secs. 498-A, 323, 506 and 114 of Cr.P.C. against the respondent husband before the court of learned Judicial Magistrate, First Class at Ahmedabad (Rural) and the case was registered as Criminal Case No. 20/2001. The applicant was compelled to file criminal complaint in this behalf.
3.3 It is also alleged that though a boy was with the applicant wife however the respondent No. 1 husband had snatched away the said boy from the wife and at present he is in custody of the husband.
3.4 The respondent No. 1 husband has filed HMP No. 7/02 before the learned Civil Judge (S.D.), at Bharuch.
3.5 This application has been filed by the applicant for a transfer of proceedings i.e. HMP No. 7/02 of Bharuch Court to Family Court at Ahmedabad, on the ground that the applicant is a woman and she is not able to travel from Ahmedabad to Bharuch alone. It has been submitted that the applicant’s father is a retired old man who is not having any source of income and so if she has to attend the court at Bharuch it will be a financial burden of the father.
3.6 It may also be noted that the applicant wife originally serving in Railway but after the marriage she has left the job and now again she has obtained the service in Railway at Ahmedabad.
4. Ms. Anu S. Verma, learned advocate for the applicant has relied upon Sec. 24 of the CPC which provides general power of transfer and withdrawal.
4.1 Learned advocate for the applicant has also relied on the judgment of the Apex Court in the case of Indian Overseas Bank, Madras v. Chemical Construction Co. and others reported in AIR 1979 SC 1514 particularly para 18 the Hon’ble Supreme Court has observed as under:
“para. 18 Although the exercise of this discretionary power cannot be imprisoned within the strait-jacket of any cast iron formula uniformly applicable to all situations. Yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same Court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category.”
4.1 A Learned advocate for the applicant has relied on the judgment of the Hon’ble Supreme Court in the case of Sumita Singh v. Kumar Sanjay and another reported in AIR 2002 SC 396 particularly para 3 which reads as under:
“para. 3 It is the husband’s suit against the wife. It is the wife’s convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute.”
4.2 She has also relied on the judgment of the Madras High Court in the case of K.R. Srinathi v. H. Ramakrishnan reported in AIR 1990 Madras 330 particularly para 13 on page 333 which reads as under:
“para. 13 The other pivot of attack of the respondent hinges on the ground of convenience, in the sense of the same being considered to be the convenience of both the parties to the proceedings. It is not at all disputed that the respondent is a permanent employee in the BHEL working as a Deputy Manager, Khaperkheda at Nagpur, Maharashtra State and that the petitioner is permanent officer in Bank of India, Bharathiar University Campus, Somnianpalayam, Coimbatore. Yet another undisputed fact is that petitioner is having a tender child of seven months’ old. If the proceedings are allowed to be held in the Family Court at Madras, both the petitioner and the respondent have to undertake the ordeal, trouble and inconvenience of making a trip to Madras for the respective places of their present abodes due to exigencies of their official positions. One can visualise and imagine the pitiable plight of the petitioner-wife to make such trips to Madras on all the hearing dates before the Family Court, which is imperative in the very nature of the provisions contained in the Act, with the suckling baby in arms. It is of no consequence for the respondent to make the necessary trips for the purpose of attending the hearings of the proceedings to Coimbatore. In this view of the matter, the scales of convenience is more titled in favour of the petitioner rather than that of the respondent. As such, the proceedings pending before the Family Court at Madras deserve to be transferred to a competent Civil Court at Coimbatore.”
5. Mr. S.M. Shah with Shri Mehul S. Shah, learned advocates for the respondent has relied upon the judgment of the Hon’ble Supreme Court in the case of Kalpana Deviprakash Thakar (Smt) v. Dr. Deviprakash Thakar reported in (1996) 11 SCC 96 particularly para 3 which reads as under:
“para. 3 Insofar as the prayer for transfer is concerned, we have not felt inclined to grant the same for the following reasons:
(a) The husband-respondent is a medical practitioner and so his absence from Bombay would cause difficulty to his patients also.
(b) His old and ailing mother lives with him at Bombay who needs frequent medical check-up and constant care.
(c) The witnesses in the case are principally from Bombay as would appear from the list of witnesses which was produced to us for our perusal.
(d) Petitioner-wife has some near relations in Bombay. The petitioner when asked about this fact, did not really deny the same. She, however, stated that they are not very close relatives and accommodation with then is insufficient. As, while coming for the trial, she would be required to stay for a day or two only at Bombay, this is not a material objection.
(e) The husband has undertaken to bear the travelling expenses of the wife as and when she would travel from Palanpur to Bombay to attend court proceedings. Let him also bear the expenditure of an escort.
(f) Palanpur is well-connected by train with Bombay, because of which the petitioner would not have to face much difficulty in undertaking the journey.”
6. In my view the following principles emerges for deciding the authority. The principle which has laid down has been set out in Code of Civil Procedure by C.K. Thakker, Vol. 1 2000 Edition page 569 which reads as under:
“As discussed above, the power of transfer must be exercised with extreme caution and circumspection and in the interest of justice. The court while deciding the question must bear in mind two conflicting interests; (i) as a dominus litis the right of the plaintiff to choose his own forum; and (ii) the power and duty of the court to assure fair trial and dispensation of justice. The paramount consideration would be the requirement of justice. And if the ends of justice demands transfer of a case, the court should not hesitate to act.”
7. I have considered the submissions made by learned advocate for the applicant wife and also submissions made by Mr. Shah, learned advocate for the respondent husband in this behalf. I have also considered Section 24 of the CPC which provides for transfer of the case from one court to another court and also judgment of the Apex Court in the case of Indian Overseas Bank, Madras (supra) and the judgment of the Madras High Court in the case of K.R. Srinathi (supra) and also judgment of the Apex Court in the case of Kalpana Deviprakash Thakar (supra). In my view the judgment of Kalpana Deviprakash Thakar (supra) is distinguishable on the ground and the facts because in peculiar facts and circumstances of the case the court has passed the order. I have also considered the fact that the applicant-wife, if she has to travel and attend the court from Ahmedabad to Bharuch then she will have to travel alone and that will cause great inconvenience to the wife both physically as well as financially. Another fact that the applicant wife is serving in Railway at Ahmedabad and if she goes to Bharuch then she will have to take leave in this behalf. On the other hand the husband is a businessman at Bharuch and therefore he can always travel from Bharuch to Ahmedabad and he is in a position to bear the expense in this behalf.
8. In this case I have seen the convenience and inconvenience of the applicant, convenience and inconvenience of the respondent, the convenience and inconvenience of the witnesses required for a proper trial of the suit, the convenience or inconvenience of a particular place of trial having regard to the nature of the evidence on the main points involved in the suit. It is an admitted fact that the applicant wife has already taken out a criminal proceeding for which the husband will have to attend the court at Ahmedabad. In my view the Family Court at Ahmedabad is well equipped for deciding the issue relating the family dispute. If the matter is transferred from Bharuch Court to Family Court at Ahmedabad, the same will be in the interest of the justice because here the wife will have to lead her evidence and the relatives of the parties are at Ahmedabad, then it will be easier for the wife to produce oral evidence and witnesses from Ahmedabad and that will be in the interest of justice if the proceedings are transferred from Bharuch Court to Family Court at Ahmedabad in this behalf.
8. A In view of the peculiar facts and circumstances of the case, I direct the application filed by respondent being HMP No. 7/02 filed before the learned Civil Judge (S.D.), Bharuch, to be transferred at Family Court Ahmedabad. However, while transferring this, this Court did not cast any doubt on the integrity, competence and reputation of the concerned Judge of Bharuch Court in this behalf. Even the wife has not shown any reasonable ground for apprehending that she may not get justice from the Presiding Officer at Bharuch. I have transferred the case from Bharuch Court to Family Court Ahmedabad only on the balance of convenience of the wife who is serving at Ahmedabad and if she has to travel alone from Ahmedabad to Bharuch that will be inconvenience physically, mentally as well as financially to the wife in this behalf. The husband being a businessman can always travel from one place to another place and in my view that will not prejudice to the case of the husband in this behalf.
9. In the facts and circumstances of the case and in view of the observations and discussions made hereinabove, this Misc. Civil Application is allowed. The HMP No. 7 of 2002 filed by the respondent before the learned Civil Judge (S.D.), Bharuch, is ordered to be transferred to the Family Court at Ahmedabad. Rule is made absolute to the aforesaid extent. No order as to costs.
10. In view of the aforesaid facts and circumstances of the case, I request the Family Court at Ahmedabad to decide the said matter at an early date preferably within three months from the receipt of the writ of this Court.
11. Before I part with the order, I may quote the following passage:
“Kerry Brown, a British woman author has stated in her book, “The Essential Teachings of Hinduism” having ascertained the real meaning of the controversial verse in Manu Smriti.
“In Hinduism, a woman is looked after not because she is inferior or incapable but, on the contrary, because she is treasured. She is the pride and power of the society. Just as the crown jewels should not be left unguarded, neither should a woman be left unprotected. No extra burden of earning a living should be placed on women who already bear huge responsibilities in society; childbirth, child care, domestic well being, and spiritual growth. She is the transmitter of culture to her children. (para 238).”