Smt. Moumita Sil Nee Das vs Sri Subhayan Sil
2023 Latest Caselaw 268 Cal

10.1.2023
    211
Ct. no. 652
   sb
                               C.O. 1961 of 2022


                              Smt. Moumita Sil nee Das
                                          Vs.
                                Sri Subhayan Sil


                   Mr. Sudip Ghosh Chowdhury
                                            ...for the petitioner

                   Mr. Samiran Giri
                   Mr. Pinaki Bhattacharya
                   Mr. Amartya Mohan Bhattacharya
                                           ....for the opposite party




                   This is an application under Section 24 of the Civil

              Procedure Code seeking transfer of the Matrimonial suit

              being no. 1077 of 2022 presently pending before the

              court of learned Additional District Judge,   7th Court,

              Alipore, South 24 parganas to the court of learned

              Additional District Judge, Serampore, Hooghly.

                   The petitioner contended that the petitioner was

              married with the opposite party according to Hindu Rites

              and customs on 24.2.2012 and she alleged that after

              marriage she was subjected to physical and mental

              cruelty by her husband and her in laws for further

              demand of dowry. They are blessed with a female child

              who was born on 28.10.2013 who is presently in the

              custody of the petitioner and pursuing her studies at

              school. The petitioner further alleged that since she was

              subjected to physical and mental cruelty by her husband
                 2




and her in laws, she lodged a criminal case being

Bansdroni Police Station case no. 116 of 2019 on

21.7.2019

. The petitioner submits that she is an

unemployed lady and she has no independent source of

income. She states her husband has not paid

maintenance to her or to her child for which, the

petitioner filed a case seeking maintenance under

Section 125 of the Code of Criminal Procedure for herself

and minor child in the court of learned Judicial

Magistrate, 2nd court at Serampore. The petitioner has

also filed a case under the provision of Protection of

Women from Domestic Violence Act, before same 2nd

court, at Serampore.

All of a sudden as counter blast the opposite

party/husband filed aforesaid suit for dissolution of

marriage against the present petitioner which is pending

before the court of learned Additional District Judge, 17th

Court, Alipore. The petitioner contended that she is a

patient of Renal failure and she has undergone surgery

thrice and she is suffering from veritgo and doctor has

advised her not to travel by bus or train and that she is

presently the custodian of minor child and both the

proceedings initiated by the petitioner are pending before

the Serampore court and that the distance in between

the petitioner's place of residence and the court at

Alipore is about 70 kilometres. In view of all, the

petitioner is facing lot of inconveniences and hardship in

attending said case at Alipur and for which she has

sought for aforesaid transfer.

The opposite party raised strong objection

contending that he was subjected to threat by the

petitioner herein while he attended the court at

Serampore in connection with other case and for which

he lodged complain and that if the court at all consider

the prayer for transfer made by the petitioner, it may be

transferred to the court at Howrah which will be

convenient for both the parties to attend. In reply,

learned counsel for the petitioner raised objection and

contended that due to her ailments, Howrah court will

not be convenient for the petitioner and petitioner also

denied allegation of threatening opposite party. In this

context, he relied upon a judgment reported in AIR 2020

SC 4548 and contended that for transfer, the

convenience of the wife must be given preference by the

court.

Having considered the aforesaid facts and that the

petitioner is suffering from various ailments and that she

is custodian of a minor child and that two other

proceedings initiated by the petitioner are pending before

the Serampore court, where the opposite party would be

required to attend and also considering the distance

factor, and that in such cases where the husband has

filed suit for dissolution of marriage, the convenience of

wife would be of paramount importance and that

inconvenience caused to a woman in travelling to

another place with child, specially when she is suffering

from ailments, for pursuing a matrimonial case is much

more than the inconvenience caused to husband, the

prayer for transfer made by the petitioner is allowed.

The learned District Judge, South 24 parganas at

Alipore is hereby directed to withdraw the matrimonial

suit no. 1077 of 2022 presently pending before the court

of learned Additional District Judge, 7th Court, Alipore,

South 24 parganas and to transmit the same to the

court of learned District Judge, Hooghly at Chinsurah

within a period of three weeks from the date of the

communication of the order who in turn will transfer the

same to the learned District Judge at Serampore,

Hooghly having jurisdiction within a period of three

weeks thereafter.

The transferee court shall issue fresh notice to

both the parties intimating the next date of hearing

before taking up further proceeding of the suit.

The department is directed to send a copy to the

court of learned District Judge, South 24 parganas,

Alipore and also to the learned District Judge, Hooghly

at Chinsurah.

Accordingly, C.O. 1961 of 2022 is disposed of.

Urgent Photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)