Gauhati High Court
Tr.P.(C)./66/2021 on 18 August, 2022
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GAHC010190122021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Transfer Petition (Civil) No. 66/2021
Smti. Anima Sutradhar, Age 34 years
W/o Sri Gokul Sutradhar,
D/o Late Bhabendra Sutradhar,
R/o Village Khairabari, Mouza-Gobardhana,
P.S.- Barpeta Road, District - Barpeta, Assam.
..................Petitioner
-Versus-
Sri Gokul Sutradhar,
S/o Late Giren Sutradhar,
R/o Village Bahati Salmara, P.O.-Bahati,
P.S.-Matia, District - Goalpara, Assam,
PIN - 783125.
...............Respondent
Advocates for the appellant : Mr A Choudhury
Advocate for the respondent : Mr N Uddin.
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BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing : 06.08.2022.
Date of judgment : 18.08.2022
JUDGEMENT AND ORDER (CAV)
Heard Mr A Choudhury, learned counsel appearing for the petitioner and Mr N Uddin,
learned counsel appearing on behalf of the respondent.
2. The instant transfer application under Section 24 of the Code of Civil Procedure, 1908,
has been preferred on behalf of the petitioner/wife by seeking transfer of the Divorce petition
bearing No. TS (D) Case No. 04/2021, titled as Gokul Sutradhar -Vs- Anima Sutradhar, filed
under Section 13 of the Hindu Marriage Act, 1955, by the respondent/husband, from the
Court of Additional District Goalpara to the Family Court, Barpeta, Assam.
3. The brief facts of the case are that the marriage of the petitioner with the respondent
was solemnized under the Hindu rites and customs on 02.03.2012, at Khairabari, Barpeta
Road and after their marriage, they lived together as husband and wife and out of their
wedlock a male child was born and presently, his age is around 6 years. It is alleged that
after few months of their marriage, the behavior of her in-laws started to turn hostile towards
her, as their demand for dowry was not fulfilled and they harassed the petitioner physically as
well as mentally, which made it difficult for her to live with them. Being intolerant, the
petitioner left her matrimonial house on 03.09.2018, along with her six years old boy and
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started to live with her elder brother, who is a carpenter by profession. The respondent or his
family members did not turn up to take her back to their house. Subsequently, the
respondent has filed a divorce case against the petitioner, as aforesaid, before the Court of
learned Additional District Judge, Goalpara, and prayed for a decree of divorce to dissolve the
marriage between them.
4. The petitioner also stated that it is very difficult on her part to move on all dates from
Barpeta Road to Goalpara, i.e., a distance of around 95 kilometres, with her 6 years old child.
Since the petitioner and her child are fully dependant on her carpenter brother, it would also
be financially unbearable for her to travel such a distance on each and every date. Further,
the petitioner had sustained fracture on her leg on October, 2020 and still she has not been
recovered. The petitioner, showing the aforesaid problems prayed before this Court to
transfer the said TS (D) Case No. 04/2021, pending in the Court of learned Additional District
Judge, Goalpara to Family Court, Barpeta.
5. Against the transfer petition of the petitioner/wife, the respondent/husband has filed an
affidavit-in-opposition, stating that the grounds shown by the petitioner to transfer the
divorce petition is not true and the allegation made against him is baseless. In fact, if the
respondent appears in the Family Court at Barpeta, it would be a threat to his life as the
brothers of the petitioner are criminal minded. It is also stated in the objection that the
respondent being a private employee in a shop, it would be a burden for him to take leave
from the shop-owner on several occasions to appear in the Family Court at Barpeta, from
Goalpara.
6. Learned counsel for the petitioner/wife has argued that son of the petitioner being 6
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years old, requires constant care and attention, so it is neither possible for the petitioner to
leave her alone for almost 7/8 hours nor to take him along with her to the Court. It is also
argued that the Goalpara Court is at a distance of more than 95 kilometres from Barpeta
Road and one way journey takes approximately 3 to 5 hours. Lastly, learned counsel for the
petitioner prayed that the aforesaid pending divorce petition may kindly be transferred from
the Court of Additional District Judge, Goalpara to Family Court, Barpeta.
7. On the other hand, learned counsel for the respondent/husband has contended that the
respondent is working in a shop as a private employee and he has no such income to bear
the cost of the travel for each and every day from Goalpara to Barpeta and also submitted
that the prayer for transfer petition be considered as per the provision of law.
8. I have considered the submissions of learned counsel for both the parties and I have
also perused the transfer petition as well as the affidavit-in-opposition.
9. In the case of Asma Parveen -Vs- Javed Bhati, reported in 2018 0 Supreme (Raj)
502, it was held as under:-
"It is an undisputed fact that the applicant-wife in the instant transfer petition is not only
young and a pardanasheen lady, but she also does not have any independent source of
income. In the absence of a stable income, it would cause her great hardship, if the
proceedings are allowed to continue at Jhunjhunu, since she is not in a position to bear her
travel expenses. It is used to be a well established and settled legal position that while going
into the merits of a transfer application, Courts are required to give more weight and
consideration to the convenience of the female litigants and transfer of legal proceedings
from one Court to another should ordinarily be allowed, taking into consideration their
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convenience and the Court should desist from putting female litigants under undue hardships.
However, it has been contended by the learned counsel for the non-applicant husband that
the position of law is not the same anymore and the Hon'ble Supreme Court has interpreted
the law, related to transfer application differently in a recent case. Hence, it is essential to
briefly discuss the ratio decidendi of the said decision"
10. In the case of Sumita Singh -Vs- Kumar Sanjay and Others; reported in AIR 2002
SC 396, the Hon'ble Apex Court held as under:_
"It is the husband 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".
11. In another case, titled as Rajnikishore Pardeshi -Vs- Kishore Babulal Pardeshi;
reported in (2005) Vol. 12 SCC 237, it was observed as under:-
"In this type of matter, the convenience of the wife is to be preferred over the
convenience of the husband. Hindu marriage Petition No. 6/2004, Kishore Babulal Pardeshi -
Vs- Rajnikishore Pardeshi, pending before the Court of Civil Judge, Senior Division, Panvel,
Mumbai, Maharashtra, is transferred to the Family Court of proper jurisdiction at Satana,
Madhya Pradesh."
12. In the case of Vaishali Sridhar Jagtap -Vs- Sridhar Vishwanath Jaktap, reported
in AIR 2016 SC 3584, Hon'ble Apex Court held as under:-
Áccording to the appellant, her mother is aged and it is difficult for her mother to
accompany her for her travel to Mumbai. It is also stated that there are three criminal cases,
one for maintenance, the second under the Prevention Of Domestic Violence Act, and the
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third under Indian Penal Code, 1860 and other related provisions pending at Barshi and one
on the civil side for restitution.
Admittedly, the distance between Mumbai and Barshi is around 400 kilometres.
Apparently, the comparative hardship is more to the appellant wife. In view of the above, the
impugned orders are set aside and the M. J. Petition No. 2287 of 2013 filed by the
respondent husband in Family Court, Bandra, Bombay, will stand transferred to the
competent Court at Barshi"
13. In another case titled as Pramila Kumari Sharma -Vs- Shri Narayan Sharma,
reported in (2010) 1 WLN 245, it was held as under:-
"Learned counsel for the petitioner wife, Mr Vishal Sharma, submitted that the
lady being alone, having child of 3 ½ years old son, Keshav has some extreme
difficulty to attend the hearings at Ajmer Court by undertaking a journey of two hours
on each occasion. He also submits that she is unemployed and now will have to seek
employment to earn her livelihood.
Having heard learned counsels and in view of the submissions made in the
application and in view of the facts and circumstances of the case as above, this Court
considers expedient to transfer the proceeding Case No. 203/2009, Narayan Sharma,
-Vs- Pramila Rani Sharma, pending in the Court of Ajmer to the learned District and
Sessions Judge, Merta".
14. Reverting back to the present case, the petitioner/wife is residing at Barpeta at her
parental house. The petitioner/wife has a son aged about 6 years and is being taken care of
by the petitioner alone. The petitioner is a housewife and she is not employed anywhere and
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has no source of income. She and her child are totally dependent on the income of her elder
brother, who is a carpenter by profession. The Goalpara Court is at a distance of more than
95 kilometres, from Barpeta, where the petitioner is staying along with her minor son.
15. It is well settled legal position that while going into the merits of a transfer application,
Courts are required to give more weightage and consideration to the convenience of the
female litigants and transfer of legal proceedings from one Court to another should ordinarily
be allowed taking into consideration of their convenience and the Courts should desist from
putting female litigants under undue hardships. In such type of matters, the convenience of
the wife is to be preferred over the convenience of the husband.
16. In view of the above discussion, the present transfer application filed by the petitioner
wife is allowed and the case bearing No. T.S. (D) Case No. 04/2021, titled as Gokul Sutradhar
-Vs- Anima Sutradhar, pending before the Court of Additional District Judge, Goalpara, is
directed to be transferred to Family Court, Barpeta. The parties shall appear before the
Principal Judge, Family Court, Barpeta, on 19.09.2022. The Court of learned Additional
District Judge, Goalpara, is directed to remit the case record of T.S. (D) Case No. 04/2021,
titled as Gokul Sutradhar -Vs- Anima Sutradhar to the Family Court, Barpeta.
17. There is no order as to costs.
18. The transfer petition is accordingly disposed of.
JUDGE
Comparing Assistant
