Baby Bhowmick vs Soumen Chowdhury
2021 Latest Caselaw 148 Gua

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GAHC010060182020




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                     Case No. : Tr.P.(C)./16/2020

             BABY BHOWMICK
             W/O SOUMEN CHOWDHURY, D/O NARAYAN BHOWMICK, R/O JAGIROAD
             SHYAMA PALLY, P.O. AND P.S. JAGIROAD, DIST. MORIGAON, ASSAM, PIN-
             782410



             VERSUS

             SOUMEN CHOWDHURY
             S/O LT. SUBIMAL CHOWDHURY R/O STATION ROAD, LUMDING, P.O. AND
             P.S. LUMDING, DIST. HOJAI, ASSAM, PIN-782447



Advocate for the Petitioner   : MR. D C BORAH

Advocate for the Respondent : MR. N K KALITA




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                              ORDER

Date : 19-01-2021

Heard Mr. K.M. Hassan, learned counsel for the petitioner and Mr. N.K. Kalita, learned counsel for the respondent.

2. By this application under section 24 CPC, the petitioner who is the estranged wife of the respondent is seeking transfer of matrimonial proceeding for judicial separation, registered as T.S. (Judicial Separation) No.70/2019 which is pending for an adjudication before the Court of learned Page No.# 2/3

Additional District Judge, Hojai, Sankardev Nagar. The petitioner is seeking a transfer of the said proceeding to the Court of learned District Judge, Morigaon on the ground that she is dependent on her parents who are old and have no source of income and therefore, it would be convenient for her to participate in the proceeding at Morigaon which is about 23 kms from her parental home.

3. The learned counsel for the respondent has referred to the case of Rosalind Margaret Baksh Vs. District Judge and another, (2005) 1 GLR 394 and has submitted that every party to a suit may have some inconvenience to attend a proceeding before a particular Court, but the refusal of transfer was not found to cause failure of justice and for the reason that the petitioner can always be represented by a counsel and it would not be necessary for her to appear before the Court on each and every day, the prayer for transfer was rejected by this Court in the cited case, and it is submitted that as a coordinate Bench are of the same strength, this Court is also bound by the ratio laid down in the said cited case of Rosalind Margaret Baksh (supra).

4. In this regard we may refer to the case of Sumita Singh Vs. Kumar Sanjay, (2001) 10 SCC

41. In the said case the Supreme Court of India was considering an application for transfer made by the wife and the learned counsel for the husband had submitted that the wife was an educated lady who was doing very well and, therefore could travel to Ara while the husband is unemployed. However, it was held that it was the husband's suit against the wife, therefore, it was the wife's convenience that must be looked on and on such circumstances, the transfer was allowed. Para-3 of the said short judgment is quoted herein below:-

"3. It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at, the circumstances indicated above are sufficient to make the transfer petition absolute."

5. In the present case in hand, the petitioner has projected that she is unemployed and she is dependent on her parents who also do not have any source of income. Therefore, there is no material before this Court to presume that the petitioner would be able to engage a counsel of her choice to participate in the proceeding. Therefore, having regard to the ratio laid down in the case of Sumita Singh (supra), the case of Rosalind Margaret Baksh (supra), having been rendered without considering the case of Sumita Singh (supra), the same is found to be per incuriam and this Court would be bound to follow the case of Sumita Singh (supra), decided by the Supreme Court of India. Therefore, this transfer petition stands allowed.

6. Accordingly, the proceeding of T.S. (Judicial Separation) 70/2019 pending before the Court of learned Additional District Judge, Hojai, Sankardev Nagar shall stand transferred to the Court of Page No.# 3/3

learned District Judge, Morigaon who shall hear the matter himself or assign it for hearing to an appropriate Court under his jurisdiction.

7. There shall be no order as to cost.

8. The parties shall appear before the Court of learned Additional District Judge, Hojai, Sankardev Nagar on 12.02.2021, on which date, the petitioner shall produce a certified copy of this order so as to enable the said learned Court to transfer the records of T.S. (Judicial Separation) Case No.70/2019 to the transferee Court by fixing a date of appearance by the parties before the learned transferee Court.

JUDGE

Comparing Assistant