Gujarat High Court Case Information System
Print
MCA/2452/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR TRANSFER No. 2452 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=================================================
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 ?
=================================================
SEEMA
DHIRAJ GIDWANI - Applicant
Versus
DHIRAJ
SITALDAS GIDWANI - Opponent
=================================================
Appearance :
MS
LILU K BHAYA for Applicant:
MR SURESH S PATEL for Opponent:
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/10/2010
ORAL
JUDGMENT
Heard
learned advocates for the parties.
The
petitioner, opponent in HMP No. 1762 of 2010, has approached this
Court under Section 24 of Civil Procedure Code for seeking
transferring of the said matter from Family Court, Vadodara to that
of Ahmedabad, on account of various difficulties and hardships in
her way in attending the Court proceedings at Vadodara.
This
Court on 16/9/2010 issued notice for final disposal, making it
returnable on 24/9/2010. The husband/ respondent herein filed his
appearance through learned advocate Shri.Suresh S. Patel. Shri Patel
submitted that there were chances for bringing about settlement
with husband wife so as to put an end to the entire controversy,
hence time was requested, which was granted. The matter was
adjourned at this request. Ultimately, as per the submission of
learned advocate for the petitioner, the settlement was not possible
and she made request for hearing the matter finally. After advocates
joint request for deciding the matter finally same was taken up for
hearing. Hence Rule. Rule is fixed forthwith at the request of
learned advocates for the parties.
The
petitioner, as it is stated herein above, opponent of HMP No. 1762
of 2010, had to file this petition as she is residing at Ahmedabad
with her 2 years old son. The petitioner is given shelter by her
mother who is serving in Ahmedabad. Petitioner’s father is residing
at Bharuch on account of his being employed at Bharuch. Thus the
petitioner is to fend for herself and her son along with her mother
at Ahmedabad. The petitioner has also preferred proceedings for
seeking maintenance under section 125 of Criminal Procedure Code.
Petitioner has pleaded that if she is compelled to visit Vadodara in
connection with H.M. Petition No. 1762 of 2010, untold hardships
would be faced by her and in view of these hardships, she would not
be in a proper position to defend the case against her.
Learned
advocate Shri Patel appearing for respondent husband submitted that
the transfer petition is premature as the H.M. Petition is at the
stage of filing of reply. Without any tangible threat of any nature
wife has preferred this petition. When the wife has not attended the
Court proceeding at Vadodara there ought not to have been any
question of she facing any threats which have been narrated in the
petiton. The apprehension of wife in respect of her child being
snatched away at Vadodara has no justification whatsoever and
therefore, on such apprehension this Court may not transfer the
petition. Shri Patel has invited this Court’s attention to the
averments made in the affidavit-in-reply filed on behalf of the
husband mentioning that the husband is ready & willing to pay
the travelling expenses to the wife so that she may attend the Court
proceediings at Vadodara. The inconvenience caused to wife for
attending the proceedings alone cannot be a ground for ordering
transfer under section 24 of Civil Procedure Code. In view of these,
the transfer petition is strongly resisted.
This
Court is unable to accept submissions of Shri Patel, learned
advocate appearing for the respondent husband for the following
reasons.
The
wife has stated on oath before this Court that she has no other
means of livelihood and she has to fend for herself as well as her
son at her mother’s place. The mother being a serving member, if the
wife is compelled to attend the Court at Vadodara, will have to be
left alone her 2 year old chiled, as there is no one to look after
the child.
The
child in fact was requested to be given in adoption to the
sister-in-law, who is unmarried and all these circumstances has
dissuade the wife from undergoing travel alone from Ahmedabad to any
other place.
The
inconvenience caused to the wife would render adverse effect upon
her ability to defend the proceedings at Vadodara.
It
is also required to be noted that wife has already moved proceedings
before the competent Court at Ahmedabad for obtaining maintenance
for herself and her son from the husband.
In
view of totality of the facts & circumstances of the case, the
submission made by learned advocate for the respondent husband
cannot be accepted that the present application is premature as the
wife has not faced any difficulties so far, and, therefore, the
petition cannot be entertained.
In
fact it should be the endeavour of both the parties to see that both
the parties may get fair trial and when peculiar facts &
circumstances facing various difficulties are pleaded which would
creep into ability of the wife to defend the petition at Vadodara,
this Court is of the view that it would be in the interest of
justice that the H.M. Petition No. 1762 of 2010 preferred by the
respondent husband before he Family Court at Vadodara is transferred
to concerned Family Court at Ahmedabad.
In
view of above, present application is allowed. It is ordered that
H.M. Petition No. 1762 of 2010 preferred by the respondent herein /
husband before the Family Court at Vadodara is transferred to
concerned Family Court at Ahmedabad. The Family Court at Ahmedabad,
after receiving H.M. Petition No. 1762 of 2010 from Family Court,
Vadodara, shall give fresh number and thereafter to issue notice to
the parties.
Application
is disposed of. Rule made absolute. No order as to costs.
[
S.R. BRAHMBHATT, J ]
/vgn
Top