NEUTRAL CITATION
C/MCA/794/2023 ORDER DATED: 15/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 794 of 2023
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KIRANBEN W/O PRAFULBHAI GORI D/O JAGDISH BHADRA
Versus
PRAFULCHAND KANJIBHAI GORI
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Appearance:
MS AISHWARYA H CHAUDHARY(11539) for the Applicant(s) No. 1
MR BALWANTSINH PARMAR WITH MR PIYUSH B TRIVEDI(12401) for the
Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 15/09/2023
ORAL ORDER
1. In this petition filed under section 24 of the Code of Civil Procedure, 1908, the petitioner has prayed to transfer Hindu Marriage Petition No.11 of 2022 pending before the learned Additional Senior Civil Judge, Ankleshwar to learned Family Court, Ahmedabad inter alia on the ground of convenience.
2. Facts of the case are as under :-
2.1. Marriage of applicant and respondent took place on 24.11.2012 as per Hindu rites and rituals. After sometime of marriage, respondent started torturing and harassment and also demanded dowry. Out of said wedlock one baby girl viz Dhyani was born on 30.07.2015 and thereafter 14.01.2021, another daughter was also born. It is submitted that applicant was subjected to physical and mental harassment by opponent and by her in laws and was forced out from her maternal house. At Page 1 of 5 Downloaded on : Mon Sep 18 20:41:13 IST 2023 NEUTRAL CITATION C/MCA/794/2023 ORDER DATED: 15/09/2023 undefined present the applicant is living with her daughters at Ahmedabad.
3. In background of above facts, the respondent has filed Hindu Marriage Petition No.11 of 2022 under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the learned Additional Senior Civil Judge, Ankleshwar.
4. In view of above, the petitioner has approached this Court under section 24 of the Code of Civil Procedure seeking relief to transfer Hindu Marriage Petition No.11 of 2022 from learned Additional Senior Civil Judge, Ankleshwar to Family Court, Ahmedabad inter-alia on the ground that she is facing difficulty to attend proceedings at Ankleshwar as she has to travel 200 kms. from Ahmedabad to Ankleshwar along with her daughters.
5. Heard learned advocate Ms. Aishwarya Chaudhary for the petitioner and learned advocate Mr.Balwantsinh Parmar for the respondent.
6. Learned advocate Mr. Balwantsinh Parmar for the respondent would submit that allegations of physical and mental torture are totally erroneous. He would further submit that on the contrary on the said date no such incident happened which led to matrimonial disharmony between the parties. He would submit that the petitioner now wants to take advantage of this aspect and get transfer litigation before Ahmedabad Court. He would submit to disallow this petition. He has placed reliance on the judgment of Apex Court in the case of Amruta Ben Himanshu Kumar Shah v/s. Himanshu Kumar Pravinchandra Shah in Transfer Petition (Civil) No.2344 of 2019 to contend that Page 2 of 5 Downloaded on : Mon Sep 18 20:41:13 IST 2023 NEUTRAL CITATION C/MCA/794/2023 ORDER DATED: 15/09/2023 undefined the Apex has rejected transfer prayer of that petitioner.
7. On the other hand learned advocate Ms. Aishwarya Chaudhary for the petitioner would submit that Ankleshwar is far flung from Ahmedabad. It is submitted that the petitioner is having two children and if Hindu Marriage Petition is transferred to Ahmedabad it shall not cause any prejudice to respondent husband. She would submit that so far as judgment in the case of Armuta Ben (supra) is concerned, transfer petition in that case was dismissed and after three years, she approached Apex Court at that stage her right to lead evidence was closed. Facts of that case is different then facts of present case and therefore, said judgment is not applicable.
8. Pressing into service judgment in the case of Tejalben v/s. Mihirbhai Bharatbhai Kothari [AIR 2016 SC 718], it is sought to be submitted by learned advocate for the petitioner that the petitioner is lady living in Ahmedabad along with her children. It is also submitted that all other proceedings arising out of dispute between the parties are pending at different Courts at Ahmedabad but Hindu Marriage Petition is pending at Anklewshwar.
9. Learned advocate for the petitioner would submit that Ankleshwar is 200 kms apart from Ahmedabadr. On every date, the petitioner has to come from Ahmedabad to Ankleshwar, which is quite inconvenience for the petitioner to attend the proceedings every time. Therefore, she would submit that the petitioner is urging to transfer Hindu Marriage Petition only on the ground of inconvenience she is facing. Learned advocate for Page 3 of 5 Downloaded on : Mon Sep 18 20:41:13 IST 2023 NEUTRAL CITATION C/MCA/794/2023 ORDER DATED: 15/09/2023 undefined the petitioner would further submit that in case Hindu Marriage Petition is transferred from Ankelweshar to Family Court, Ahmedabad, the petitioner shall not seek expenses for transportation she had borne for attending the proceedings. Upon such submissions, she requested to allow the petition.
10. In the case of Sumita Singh v/s. Kumar Sanjay [AIR 2002 SC 396], the Apex Court has observed that wife's inconveniency must be given due importance while deciding transfer petition. It is to be noted that power under section 24 of the CPC is discretionary power. The Court may or may not exercise discretion. However, when such discretion is to be exercised it must be guided by settled principle of law. To be noted that the petitioner has sought relief only on the ground of inconvenience. Fairness of judicial proceedings is not questioned. No allegations of bias in the proceedings is levelled against Judicial Officers. Thus convenience as stated earlier must be considered more particularly in background of the fact that travelling from Ankleshwar to Ahmedabad is quite difficult as both cities apart 200 kms. It is difficult for the lady to attend proceedings at Ankleshwar. Thus, inconvenience which is pinpointed in the petition can be visualized and could be given importance as well.
11. So far as judgment of Amruta (supra) is concerned, the indicates that wife had filed application for getting transfer expenses which was rejected by the Family Court. Order was challenged before High Court of Gujarat but outcome was not known to the petitioner. Secondly, her right to lead evidence was closed by the Family Court. In this peculiar facts, the Apex Court considering the stage of case thought it fit to transfer Page 4 of 5 Downloaded on : Mon Sep 18 20:41:13 IST 2023 NEUTRAL CITATION C/MCA/794/2023 ORDER DATED: 15/09/2023 undefined petition with certain directions. Facts of that case are different from present case and therefore, said judgment is not applicable to the respondent.
12. In view of above peculiar facts and circumstances and for the foregoing reasons, this petition deserves consideration. Accordingly, the petition is allowed. Hindu Marriage Petition No.11 of 2022 pending at learned Additional Senior Civil Judge, Ankleshwar is hereby transferred to Family Court, Ahmedabad for disposal in accordance with law.
Direct service is permitted.
(J. C. DOSHI,J) SATISH Page 5 of 5 Downloaded on : Mon Sep 18 20:41:13 IST 2023