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MCA/2014/2010 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR TRANSFER No. 2014 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 ?
=========================================================
VARSHABEN
ASHISHBHAI JANI - Applicant
Versus
ASHISHBHAI
ARUNBHAI JANI Respondent
=========================================================
Appearance :
MR
PRATIK Y JASANI for
Applicant
MR SP MAJMUDAR for Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 18/10/2010
ORAL
JUDGMENT
Heard
learned advocates for the parties.
The
petitioner respondent in Hindu Marriage Petition No. 16 of 2010
pending before the learned Principal Civil Judge, Morbi, has moved
this Misc. Civil Application under Section 24 of the Code of Civil
Procedure for seeking transfer of the said proceedings to that of
Family Court, Rajkot, where, she resides after separating from the
respondent husband on account of serious dispute.
This
Court (Coram: Ravi R. Tripathi, J.) vide order dated 05.08.2010
issued Rule, which was made returnable on 14.09.2010. The husband
respondent hereinabove has been represented by an advocate and an
affidavit-in-reply has come on record.
Shri
Jasani, learned advocate appearing for the applicant wife placed
reliance upon the decision of the Supreme Court in case of Sumita
Singh Vs. Kumar Sanjay, reported in 2001 (10)
SCC 41 = AIR 2002 SC 396 and Section 19 of the Hindu
Marriage Act, 1955, submitted that in no case the maintenance
petition should have been maintained at Morbi.
Learned
advocate Shri Majmudar appearing for the respondent husband has
contended that applicant is not justified in seeking transfer as
even as per the averments made in the Hindu Marriage Petition, more
particularly in para-6, it indicates that the couple lastly resided
together at Morbi only. This fact couple with the fact that wife has
not preferred any application on this court for ousting the
jurisdiction of Morbi, would go to show that the applicant has no
right to plead Section 19 of the Hindu Marriage Act into service. So
far as inconvenience on the part of applicant, Shri Majmudar has
submitted that the respondent husband is ready and willing to bare
the cost of traveling so as to help the wife in traveling from
Rajkot to Morbi for attending the proceedings. Beside this, Shri
Majmudar has submitted that as stated in the affidavit-in-reply, the
husband has also expressed that the wife has strong influence at
Rajkot, which also held militating against maintaining the transfer
petition.
This
Court has heard learned advocates for the parties at length and
perused the rival contention as emerged from the record and
affidavit-in-reply. The husband has filed an application seeking
divorce from the wife and in view of the decision of the Apex Court
in case of Sumita Singh Vs. Kumar Sanjay, reported in 2001(10) SCC
41, the wife’s inconvenience is to be looked into and not the
husband. Beside section 19 also, enjoin the parties to file petition
either at the place where parties to the marriage last resided
together or where the wife is the petitioner, where she is residing
on the date of presentation of the petition. In the instant case,
admittedly, the wife is lastly resided at Rajkot only. The
preparedness of the respondent husband to meet with the traveling
expenses are not to be a ground for rejecting the transfer petition.
The applicant wife has shown her inconvenience as stated in the memo
of application and I do not intend to dwell elaborately upon the
rival contentions as it may affect the parties inter-se dispute and
rival contentions before the concerned Court. The Misc. Civil
Application is required to be allowed and is allowed. The Hind
Marriage Petition No. 16 of 2010 pending before the Court of learned
Principal Civil Judge, Morbi is ordered to be transferred to the
Family Court, Rajkot and registry of Family Court, Rajkot is
directed to give fresh number and parties be informed accordingly
about the date. Rule is made absolute to the aforesaid extent. There
shall be no order as to costs.
(S.R.BRAHMBHATT,
J.)
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