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MCA/1979/2007 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR TRANSFER No. 1979 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RADHIKABEN
CHIRAGBEN MEHTA - Applicant(s)
Versus
CHIRAGKUMAR
RAMESHCHANDRA MEHTA & 1 - Opponent(s)
=========================================================
Appearance
:
MS
ARCHANA R ACHARYA for
Applicant(s) : 1,
MR AMRISH K PANDYA for Opponent(s) : 1,
MR
VIPUL MISTRY ASST.GOVERNMENT PLEADER for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 31/07/2008
ORAL
JUDGMENT
RULE.
Mr.Amrish Pandya, learned advocate and Mr.Vipul Mistry, learned
Asst. Government Pleader, waive the service of notice of admission
on behalf of the respondent Nos.1 and 2 respectively.
With
the consent of the learned advocate appearing on behalf of the
respective parties, the matter is taken up for final hearing today.
Present
petition under sec.24 of the Code of Civil Procedure is filed by the
petitioner ? wife for an appropriate order to transfer Hindu
Marriage Petition No. 598 of 2007 from the court of learned 4th
Judge, Family Court, Ahmedabad to the Competent Court having
jurisdiction at City Bharuch, District Bharuch.
It
is the contention on behalf of the petitioner that she has married
with the respondent No.1 on 28/1/2005 and she came to Ahmedabad at
her matrimonial house and thereafter, the respondent No.1 and his
family members, more particularly, mother-in-law of the petitioner
started ill-treating the petitioner mentally and physically and
therefore, she was compelled to leave her matrimonial house and
since then she is residing at Bharuch at her parents house. It is
further submitted that thereafter, the petitioner was constrained to
file Criminal Misc. Application No.224 of 2007 before the Chief
Judicial Magistrate, Bharuch seeking maintenance under sec.125 of
the Code
of Criminal Procedure. It is further submitted
that as a counter blast, the respondent No.1 husband has filed suit
for dissolution of marriage being Hindu Marriage Petition No. 598 of
2007 in the Family Court at Ahmedabad. It is submitted that the
petitioner is residing with her aged parents and she has never
travelled alone. It is submitted that the father fo the petitioner
is aged about 70 years and is not capable to travel from Bharuch to
Ahmedabad to give company to the petitioner to attend the
proceedings on every date of adjournments. It is also submitted that
the petitioner is dependent on her parents and has no independent
source of income. It is submitted that it is not convenient for the
petitioner to attend the proceedings in the Family Court at
Ahmedabad on every date of adjournment. It is submitted that
financially also it is not possible for the petitioner to meet with
the expenditure of coming to Ahmedabad. Therefore, it is requested
to allow the present petition and transfer the proceedings in
question to the Civil Court at Bharuch. The learned advocate
appearing on behalf of the petitioner has relied upon the decision
of the Hon’ble Supreme Court in the case of Sumita Singh V/s.
Kumar Sanjay and another, reported
in AIR 2002 S.C. 396, in
support of his prayer to allow the present petition.
The
petition is opposed by Mr.Amrish Pandya, learned advocate appearing
on behalf of the respondent husband. It is submitted that in the
facts and circumstances of the case and when the respondent is
residing at Ahmedabad, the proceedings may not be transferred to the
Court at Bharuch.
Heard
the learned advocate appearing on behalf of the respective parties.
It
appears that the petitioner wife is residing at Bharuch with her
parents. According to the petitioner, the petitioner was compelled
to leave her matrimonial house. It appears that the petitioner in
first point of time has initiated proceedings under sec.125 of the
Code of Criminal
Procedure in the Court at Bharuch and thereafter as a
counter blast the respondent No.1 husband has filed Hindu Marriage
Petition No.598 of 2007 in the Family Court, Ahmedabad. It is the
contention on behalf of the petitioner wife that looking to the
distance between the Bharuch and Ahmedabad, it will not be possible
for the petitioner to attend the proceedings pending in the Family
Court at Ahmedabad on every date of adjournment and as the
petitioner has no independent source of income, it will not be
possible for the petitioner to meet with the expenditure of
travelling to Ahmedabad on every date of adjournment. As observed
by the Hon’ble Supreme Court in the case of Sumita Singh
(supra), in a matrimonial
proceedings while considering sec.24 of the Code of Civil Procedure,
convenience of the wife is required to be considered. Considering
the above, the petition deserves to be allowed.
For
the reasons stated above, the petition succeeds. It is hereby
ordered to transfer Marriage Petition No.598 of 2007 from the court
of learned 4th Judge, Family Court, Ahmedabad to the
District Court, Bharuch and in turn the District Judge, Bharuch to
transfer the said proceedings to the competent court having
jurisdiction in Bharuch. Rule is made absolute accordingly. In the
facts and circumstances of the case, there shall be no order as to
costs.
[M.R.
SHAH, J.]
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