Gauhati High Court
Tr.P.(C)./46/2024 on 16 August, 2024
GAHC010118122024
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Transfer Petition (C) No. 46/2024
Sajida Jesmine,
D/o Faizul Haque,
R/o Juhir Kandi,
P.O. - Jadutilla,
PIN - 788720,
P.S. & District - Karimganj, Assam.
......Petitioner.
-Versus-
Abdul Hashim,
S/o Mozir Uddin,
R/o Alamkhani, PO & PS-Nilambazar,
PIN - 788722,
District - Karimganj, Assam.
Temporary Address :-
House No. 52, South Sarania,
P.O. - Ulubari,
P.S. - Paltanbazar, Guwahati 781007,
District - Kamrup (M) Assam.
......Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the petitioner :- Mr. N. Haque.
For the respondent :- Mr. P.K. Deka.
Date of hearing :- 06.08.2024.
Date of Judgment & Order :- 16.08.2024.
JUDGMENT & ORDER
Heard Mr. N. Haque, learned counsel for the petitioner
and Mr. P.K. Deka, learned counsel for the sole respondent.
2. This petition, under Section 24 read with Section 151 of
the Code of Civil Procedure (C.P.C.), 1908, is preferred by Smti.
Sajida Jesmin for transferring F.C. (Civil) Case No. 301/2024,
pending before the court of learned Principal Judge, Family Court
Kamrup (M) Guwahati to the court of learned District Judge,
Karimganj.
The background facts:-
3. The background facts leading to filing of the present
petition are briefly stated as under:-
"The petitioner got married with the respondent/opposite
party on 02.12.2018, as per Muslim Sariat. After
marriage, they have started their conjugal life at the
permanent resident of the respondent/opposite party at
village Alamkhani in the district of Karimganj. In the
marriage she was gifted with articles by her father as per
his capacity. But, the family members of the
respondent/opposite party were not satisfied with the
said articles. The respondent/opposite party is working at
Dubai for longtime, even prior to marriage. Out of their
wedlock a girl child was born and now she is 2 & ½ years
old. The respondent/opposite party used to come to his
native village at-least once in a year and accordingly, on
23.05.2022, he came to his resident and stayed with the
petitioner and after living few days with the petitioner, he
wanted to meet one Smti Begum Sahin Habiba @ Babli at
Guwahati, with whom he has maintained an extra-marital
affairs and the petitioner has objected to the said extra-
marital affairs. Then, on 25.05.2022, the petitioner was
beaten by her husband (respondent/opposite party) and
she received head and chest injury and for which she was
undergoing treatment at Nilambazar P.H.E. and she was
advised to do C.T. Scan and X-Ray of chest.
Thereafter, on 12.07.2022, the respondent/opposite
party returned to Dubai and thereafter, on 23.07.2022,
family members of the respondent/opposite party
assaulted the petitioner, demanding Rs. 10,00,000/- as
dowry and driven her away from the matrimonial home
with the minor child. Then, the petitioner was taking
shelter in her parental home and since then, she has
been living with her parents and she was treated at
Karimganj Civil Hospital on 24.07.2022 and doctor
prescribed her medicine for her physical injury and also
advised her to do C.T. Brain(P).
On many occasions the petitioner was harassed
both physically and mentally by the respondent and his
family members, more particularly on 25.05.2022 and on
23.07.2022. After the incident of 23.07.2022, the
petitioner lodged an ejahar before the Officer In-Charge,
Nilambazar P.S. and also filed a complaint case, being
C.R. No. 553/2024, before the learned Chief Judicial
Magistrate, Karimganj, under Section 498(A) of the Indian
Penal Code (I.P.C.).
In the meantime, the respondent also filed a
petition under Section 281 of the Mahammadan Law,
praying for restitution of conjugal life, before the learned
Principal Judge, Family Court Kamrup (M) Guwahati,
which was registered as F.C.(Civil) Case No. 301/2024
and the petitioner received notice to appear before the
said court on 18.05.2024.
It the said case, the respondent stated that he is
the original resident of Alomkhani village, under
Nilambazar P.S. of Karimganj district and he served in
various corporate sectors of Guwahati and thereafter, he
had shifted to UAE, Dubai, wherein he is presently
working. It is further stated that the marriage of the
petitioner with the respondent was solemnized at
Karimganj and they have started their conjugal life at
Karimganj and the child was also born at Karimganj and
she was driven out from the matrimonial home at
Karimganj and all the cause of action of the case were
arose at Karimganj.
In view of aforementioned facts and circumstances,
the learned Principal Judge, Family Court Kamrup (M),
Guwahati, has no jurisdiction to try the said case."
Therefore, it is contended to transfer the F.C.
(Civil) Case No. 301/2024, pending before the Court of
learned Principal Judge, Family Court Kamrup (M)
Guwahati to the court of learned District Judge,
Karimganj.
4. The respondent has filed affidavit-in-opposition and
denied the averments made by the petitioner in the petition. It is
stated that on 23.07.2022, the respondent came to India to meet
his family members and reached his native place. It is further stated
that the allegation of maintaining an extra-marital affair with
another lady, i.e. the cousin sister of the petitioner, is false. It is
also stated that beating the petitioner for protesting such elicit
relationship is absolutely false and concocted. It is also stated that
rather, the respondent and his family members are very much
willing that the petitioner, i.e. the wife of the respondent, and their
child, to leave for Dubai with the respondent and for which the
respondent had already obtained Passport of the petitioner, but, he
could not obtain the Passport for their child due to non-cooperation
of the petitioner and her family members. It is also stated that due
to instigation and misdirection, the petitioner had filed the case
against the respondent. It is also stated that the respondent is
ready to accept the petitioner and their child and also to take them
to Dubai. It is also stated that if the case is transferred to the court
of learned District Judge, Karimganj, then there is every possibility
of being influenced by the third party and in that case, his marital
life would be ruined and there will be no prospect for reconciliation
and therefore, it is contended to dismiss the petition.
Submissions :-
5. Mr. Haque, learned counsel for the petitioner submits
that cause of action if any, arises within the jurisdiction of District
Judge, Karimganj and marriage was solemnized within the
jurisdiction of District Judge, Karimganj and the parties also, after
the marriage lived within the jurisdiction of District Judge, Karimganj
and at no point of time, the petitioner used to reside with the
respondent at Guwahati, though the address of the respondent is
shown at Guwahati. Mr. Haque further submits that the respondent
used to reside at Dubai and he used to visit occasionally his native
place and that the petitioner has a little child of two and half years
old and she lived in her parental house and she has no source of
income and she is financially unsound and that the witnesses of the
case also resides at Karimganj and as such, it is not possible on her
part to appear before the Family Court at Guwahati and also not
possible on the part of the witnesses to undertake such an arduous
journey from Karimganj to Guwahati by covering a distance about
350 km and as such, the balance of convenience is always in favour
of the petitioner and therefore, it is contended to allow the petition.
Mr. Haque has referred a decision of this Court in Jhuma Kaibarta
vs. Dadhichi Kaibarta, in Tr.P.(C)./31/2023, wherein this
court has allowed the petition filed by the petitioner wife to transfer
T.S.(M) No.140/2022 from Sivasagar to Cachar where the petitioner
resides.
6. On the other hand, Mr. Deka, learned counsel for the
respondent submits that the respondent has shown his address at
Guwahati in the case filed before the Family Court at Guwahati. Mr.
Deka further submits that the respondent is willing to take back the
petitioner and her daughter and that the respondent managed the
passport of the petitioner, but he could not manage the passport of
his daughter and therefore, he could not be able to take them to
Dubai to live with him. Mr. Deka also submits that if the case is
being tried at Guwahati in the Family Court, there is every possibility
of ending the case in compromise, otherwise there is less possibility
of compromise of the case, if the case is transferred to Karimganj,
as there is influence of third party on the petitioner and therefore, it
is contended to dismiss the petition. Mr. Deka also submits that the
respondent resides at Dubai and it would be convenient for him to
attend the proceeding at Guwahati and that he will also bear the
expenditure of travelling of the petitioner from the Karimganj to
Guwahati. Mr. Deka has referred one case law of Gujarat High
Court, in Jayshreeben Pravinbhai Algotrara vs. Chintan
Kumar Kalyanbhai, in Civil Appeal No. 932/2019, and
another decision of this court in the case of Rosalind Margaret
Baksh vs. District Judge Golaghat, reported in 2004 (2)
GLT 126.
7. Having heard the submissions of learned counsel for both
the parties, I have carefully gone through the petition as well as the
documents placed on record and also perused the relevant
provisions of law.
Legal Frame Work:-
8. Section 24 of the C.P.C. provides for transfer of a suit. It
reads as under:-
(1) On the application of any of the parties and
after notice to the parties and after hearing
such of them as desired to be heard, or of
its own motion without such notice, the High
Court or the District Court may at any stage
(a) Transfer any suit, appeal or other
proceeding pending before it for trial
or disposal to any Court subordinate to
it and competent to try or dispose of
the same, or
(b) Withdraw any suit, appeal or other
proceeding pending in any Court
subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or
disposal to any Court subordinate
to it and competent to try or
dispose of the same; or
(iii) retransfer the same for trial or
disposal to the Court from which
it was withdrawn.
(2) Where any suit or proceeding has been
transferred or withdrawn under sub-section
(1), the Court which 1[is thereafter to try
or dispose of such suit or proceeding] may,
subject to any special directions in the
case of an order of transfer, either retry
it or proceed from the point at which it was
transferred or withdrawn.
(3) For the purposes of this section,
(a) Courts of Additional and Assistant Judges
shall be deemed to be subordinate to
the District Court;
(b) Proceeding includes a proceeding for the
execution of a decree or order].
(4) The Court trying any suit transferred or
withdrawn under this section from a Court of
Small Causes shall, for the purposes of such
suit, be deemed to be a Court of Small
Causes.
(5) A suit or proceeding may be transferred under
this section from a Court which has no
jurisdiction to try it.
9. The relevant provision herein this case is 24(1)(ii) of CPC.
Before a discussion is directed into the issue it would be in the
interest of justice to understand the principles, governing transfer of
cases, presently occupying the field.
10. In the case of Indian Overseas Bank vs. Chemical
Construction Company, reported in (1979) 4 SCC 358,
while dealing with consideration that has to be taken into account
for transferring a case, the Hon'ble Supreme Court has held as
under :-
‚16. The principle governing the general power of
transfer and withdrawal under Section 24 of the
Code is that the plaintiff is the dominus litis
and, as such, entitled to institute his suit in
any forum which the law allows him. The court
should not lightly change that forum and compel
him to go to another court, with consequent
increase in inconvenience and expense of
prosecuting his suit. A mere balance of
convenience in favour of proceedings in another
court, albeit a material consideration, may not
always be a sure criterion justifying transfer.
17. As compared with Section 24, the power of
transfer of civil proceeding to another court,
conferred under the new Section 25 on the Supreme
Court, is far wider. And, so is the amplitude of
the expression, ‚expedient in the interest of
justice‛ which furnishes a general guideline for
the exercise of the power. Whether it is expedient
or desirable in the interest of justice to
transfer a proceeding to another court, is a
question which depends on the circumstances of the
particular case.‛
11. There is, however, unanimity of opinion that 'balance of
convenience' is the prime consideration for transfer of a suit. The
expression "balance of convenience" has inspired profound
legal thought and has acquired the gloss of many judicial
interpretations. Restated in simple terms it is a question of fact in
each case. 'Balance of convenience' is neither the convenience
of the plaintiff alone nor of the defendant alone but the balance of
convenience of both. In determining the balance of convenience for
the trial of a suit, the Court has to take into consideration the
following:-
‚(1) Convenience or inconvenience of the plaintiff
and the right of the plaintiff to choose his
own forum;
(2) Convenience or inconvenience of the defendant;
(3) Convenience or inconvenience of the witnesses
required for a proper trial of the suit;
(4) Convenience or inconvenience of the particular
place of trial having regard to the nature of
the evidence on the main points involved in the
suit and also having regard to the doctrine of
'forum convenience'; and
(5) Nature of issues in the suit.‛ (Ref. Baburam
Agarwalla vs. Jamunadas Ramji And Co. reported
in AIR 1951 Cal 239)
12. Again, in the case of Mrs. Maneka Sanjay Gandhi and
Anr. vs. Ms. Rani Jethmalani (1979) 4 SCC 167, Hon'ble
Supreme Court has emphasized the necessity to ensure fair trial,
observing as hereunder: "Assurance of a fair trial is the first
imperative of the dispensation of justice and the central criterion for
the court to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy
availability of legal services or like mini-grievances. Something more
substantial, more compelling, more imperiling, from the point of
view of public justice and its attendant environment, is necessitous
if the Court is to exercise its power of transfer. This is the cardinal
principle although the circumstances may be myriad and vary from
case to case. We have to test the petitioner's grounds on this
touchstone bearing in mind the rule that normally the complainant
has the right to choose any court having jurisdiction and the
accused cannot dictate where the case against him should be tried.
Even so, the process of justice should not harass the parties and
from that angle the court may weigh the circumstances.
13. Although, Mrs. Maneka Sanjay Gandhi (supra) relates to
a criminal case, yet the context is same i.e. transfer. Therefore, this
court is of the view that the principle enunciated therein can be
applied in other cases also.
14. Thus, it appears that though the plaintiff is dominus
litis, yet, the aforesaid right can be interfered with by the court
on consideration of several factors and out of the same 'balance
of convenience' is the prime consideration.
Analysis:-
15. Having informed ourselves about the proposition of law on
transfer of a suit, now, we will proceed to deal with the arguments
so advanced by the learned counsel of both sides, in the light of
facts and circumstances on the record.
16. It appears from the record that the petitioner and
respondent, both hail from Karimganj. The marriage between the
petitioner and the respondent was solemnized at Karimganj and
after the marriage they reside at Karimganj. Though the respondent
has showed one of his addresses at Guwahati, yet, there is no
material to suggest that at any point of time they reside at
Guwahati. Therefore, this court is of the view that mere showing of
an address at Guwahati by the respondent would not confer
jurisdiction upon the Family Court at Guwahati. Therefore, the
submission of Mr. Hoque in respect of jurisdiction bears sufficient
force.
17. It is submitted that the witnesses proposed to be examined
in the case at Family Court at Kamrup, hails from Karimganj. It is
further submitted that the witnesses, whom the petitioner would
examine, also hails from Karimganj. The petitioner has also a baby
and if the case is allowed to be tried at Guwahati, she and her
witnesses have to undertake an arduous journey from Karinganj to
Guwahati covering 350 km through the hilly track of Meghalaya,
which, in the rainy season; mere often occurs frequent land sliding
and road blockage. Indisputably also, the petitioner has no source
of income. Besides, the respondent is also not residing at Guwahati.
He resides at Dubai and working there in a Company. Further, it
appears from the averments made in the petition that the
respondent has extra-marital relationship with a woman of
Guwahati. Under such circumstance also, the prayer of the
petitioner bears significance.
18. Thus, having tested these grounds of petitioner on the
touchstone of the propositions, so laid down in the case of Menaka
Gandhi (supra), and weighing the 'balance of convenience'
against the dominus lities, we find that the 'balance of
convenience' of the petitioner has outweighed the dominus
lities of the respondent herein.
19. I have carefully gone through the case laws, Rosalind
Margaret Baksh (supra) and Jayshreeben Pravinbhai
Algotrara (supra), referred by Mr. Deka, learned counsel for
the petitioner and I find that the same are based on their respective
facts. These decisions cannot be read as a precedent as they don't
lay down any particular law. That being so, the case laws referred
by Mr. Deka, learned counsel for the respondent would not advance
his argument. Same is the position in respect of Jhuma Kaibarta
(supra) also. Therefore, reference to all those decisions found to
be not necessary to decide the issue involved herein.
Finding:-
20. Under the above mentioned facts and circumstances and
taking a pragmatic approach to the issue, this Court is of the view
that, justice demands that the case should be transferred from the
court of Principal Judge, Family Court, Kamrup(M) at Guwahati to
the court of learned District Judge, Karimganj.
21. Accordingly, the petition stands allowed. The F.C. (Civil)
Case No. 301/2024, pending before the court of learned Principal
Judge, Family Court Kamrup (M) Guwahati, stands transferred to the
court of learned District Judge, Karimganj.
22. In terms of above, this petition stands disposed of. The
parties have to bear their own cost.
JUDGE
Comparing Assistant
