Gujarat High Court Case Information System
Print
MCA/2068/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION No. 2068 of 2010
=========================================================
PUSDHPABEN
W/O MEHULKUMAR DABGAR - Applicant(s)
Versus
MEHULKUMAR
KESHAVLAL DABGAR - Opponent(s)
=========================================================
Appearance
:
MR
GAURAV CHUDASAMA for
Applicant(s) : 1,
MR MUKESH B DAVE for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 22/09/2010
ORAL
ORDER
Heard
the learned advocates for the parties.
The
petitioner, opponent in Hindu Marriage Petition No.35/2009 pending
before the Court of learned Additional Senior Civil Judge, Anand, has
approached this Court under the provisions of Section 24 of the Code
of Civil Procedure for seeking transfer of the said H.M.P. No.35/2009
from Anand to Gandhinagar on account of difficulties narrated in the
memo of the petition.
This
Court (Coram: Ravi R.Tripathi, J.) had issued rule on 11th
August 2010 which was made returnable on 6th September
2010 and in response thereto, the respondent-husband has filed
affidavit-in-reply through his advocate resisting the prayer for
transfer.
The
learned advocate appearing for the petitioner-wife submitted that the
petitioner had been residing at Dehgam, which is nearer to
Gandhinagar and she has been supported by her parents. The
petitioner-wife was constrained to file application for maintenance
being Misc. Criminal Application No.259/2005 under Section 125 of the
Code of Criminal Procedure at Dehgam, which was ordered to be
transferred to Gandhinagar Court at the instance and on application
of the present respondent-husband and now the said maintenance
application is pending before the competent court at Gandhinagar,
which is renumbered as Misc. Criminal Application No.702/2007. The
applicant has been driven out of her matrimonial home since 2nd
February 2005 and she has to maintain herself as well as a minor son
born out of the said wedlock. The petitioner has further averred in
the memo of the petition and as her counsel has contended that she
has not been receiving the maintenance amount ordered by the Court
regularly.
The
advocate for the respondent-husband has submitted that the conduct of
the petitioner-wife and her relations also need to be looked into
while considering the request for transfer. Learned advocate for the
respondent-husband drew the attention of this Court to the
affidavit-in-reply filed by the respondent-husband resisting the
prayer, and submitted that the husband was assaulted at Dehgam and,
therefore, even police was also informed. The letter addressed to the
Police Inspector, Dehgam Police Station in this regard is placed on
record. At this stage, learned advocate for the petitioner submitted
that on account of the said letter the maintenance application came
to be transferred to Gandhinagar at the instance of present
respondent and, therefore, now he cannot have any objection if the
H.M.P. No.35/2009 is transferred to Gandhinagar.
This
Court has considered the rival submissions and perused the petition,
annexures and the affidavit-in-reply. The Court is of the view that
the husband would not be justified in resisting the petition as he
himself had sought the maintenance petition transferred from Dehgam
to Gandhinagar. Therefore, while an application is filed by the wife
for seeking transfer of the H.M.P. No.35/2009 from the Court of Anand
to that of Gandhinagar, the husband cannot object to it on any ground
except on the ground of malafide or any other ground similar thereto.
In the entire affidavit-in-reply, the husband has not made any
averment with regard to any malafide intention on the part of the
wife in making the request of transfer of H.M.P. No.35/2009 from the
Court of Anand to that of Gandhinagar. In absence of any specific
malafide alleged or established, the wife’s request for transfer, in
view of the earlier maintenance petition being transferred at the
instance of the husband at Gandhinagar, is required to be viewed and
considered.
I
am of the considered view that in larger interest of justice and in
order to see to it that the parties have appropriate convenience in
defending the respective stand, the transfer is warranted. Hence, the
Application is allowed. The H.M.P. No.35/2009 pending before the
learned Senior Civil Judge, Anand is hereby ordered to be transferred
to the Court of learned Senior Civil Judge, Gandhinagar. The Court of
learned Senior Civil Judge, Gandhinagar, where the matter would be
received, shall intimate the parties about the date of hearing
thereof.
Rule
made absolute to the aforesaid extent. No order as to cost. Direct
service is permitted.
(S.R.Brahmbhatt,
J.)
/moin
Top