Daxaben D/O Dahyabhai Dhanabhai ... vs Vijaykumar Lallubhai Makwana
2021 Latest Caselaw 373 Guj

         C/MCA/283/2020                                 JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/MISC. CIVIL APPLICATION NO. 283 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1     Whether Reporters of Local Papers may be allowed             No
      to see the judgment ?

2     To be referred to the Reporter or not ?                      Yes

3     Whether their Lordships wish to see the fair copy            No
      of the judgment ?

4     Whether this case involves a substantial question            No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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     DAXABEN D/O DAHYABHAI DHANABHAI SONARA W/O VIJAYKUMAR
                           MAKWANA
                             Versus
                 VIJAYKUMAR LALLUBHAI MAKWANA
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MS KHUSHBU P VYAS(7040) for the Applicant(s) No. 1
MR JOHNSEY P MACWAN(5498) for the Opponent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                            Date : 12/01/2021

                            ORAL JUDGMENT

1. This application under Section 24 of the Civil Procedure Code, 1908, (CPC) has been filed by the applicant - wife with a prayer to transfer the Family Suit No. 182 of 2017 filed by the respondent herein - husband under Section 13(1) of the Hindu Marriage Act, 1955 for divorce.

C/MCA/283/2020 JUDGMENT

2. Pursuant to the notice issued by this Court, learned advocate Mr. Jonhsey Macwan appeared for the Respondent - husband.

3. Facts in nutshell of the present case are that, marriage of the present applicant and respondent was solemnized on 13.03.2015 as per the Hindu rites and rituals. That, out of the said wedlock they have one child. That, after the marriage, for some time, their marriage life went good, but then, allegedly, the respondent, started giving physical and mental torture to the present applicant, which, eventually, led to the irreparable break down of the marriage and therefore, the respondent herein filed a Family Suit No. 182 of 2017 before the Family Court at Anand.

4. Heard learned advocates for the respective parties through video conference.

4.1 The learned advocate for the applicant - wife has vehemently submitted that the respondent - husband has filed the suit in question in the Family Court at Anand, whereas applicant is a permanent resident of Nadiad. Further, the applicant has a minor child and hence, it is very difficult for her to attend the Court proceedings at Anand, which is at a quite distance from Nadiad. Further, the applicant has filed an application under Section 125 of the Criminal Procedure Code, 1973 (CrPC) before the concerned Court at Nadiad only. Furthermore, the respondent is financially sound and living a lavish life, whereas, the applicant has responsibility of her child also and in the circumstances, it is urged that it would be quite easier for the respondent to attend the proceedings at Nadiad than the present applicant, who resides at Nadiad and has to go to Anand for attending the Court proceedings with her minor child

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at Anand. Therefore, it is prayed that the suit in question may be transferred from Family Court, Anand to the concerned Court at Nadiad.

5. Per contra, learned advocate Mr. Macwan for the respondent - husband, while vehemently opposing the present application, submitted that the grounds canvassed by the applicant are not convincing and genuine inasmuch as the distance between the two places i.e. Anand and Nadiad is less than 20 kms. Furthermore, the suit in question is on the verge of completion and in the circumstances, it would not be justifiable to transfer the proceedings as requested for. He also submitted that otherwise the respondent - husband has also deposited an amount of Rs.60,000/- before the concerned Court at Nadiad. Further, it is submitted that the matter is adjourned for about 65 times before the concerned Court below. Accordingly, it is strongly urged that in the given circumstances, present application may not be entertained and requested to reject the same.

6. Regard being had to the submissions advanced by the learned advocates for the respective parties and considering the facts and circumstances of the case, it appears that the present applicant has filed this application under section 24 of the CPC for transfer of aforesaid family suit from Family Court, Anand to the concerned Court at Nadiad. Exercise of discretion under section 24 of the CPC is commonplace but for the fact that the ground for the same is genuine and convincing. Simultaneously, it is the duty of the Courts to check the abuse of process of law and Courts besides, merits of the case. Adverting to the facts of the present case, the present applicant has sought transfer of a case, which, as per the statement made by the learned advocate for

C/MCA/283/2020 JUDGMENT

the respondent at bar, is on the verge of completion and on the stage of, for orders. In the circumstance, it would not be apt to transfer the suit, as requested for, as it would amount to abuse of process of law and Court. Furthermore, on merits also, the Court is not convinced for the reason that the distance between the two places is less than 20 kms. and therefore, the applicant can travel to Anand for attending the Court proceedings hassle-free and without any hardship. All this lead this Court to come to a conclusion that transfer, as sought for, would not subserve any purpose, on the contrary, in the considered opinion of this Court, the same would amount to abuse of process of law and Court and hence, the matter merits no consideration. Further, undisputedly the respondent - husband has already deposited an amount of Rs.60,000/- before the concerned Court and hence, at this juncture, the Court deems it proper not to go into paying expenses for travelling by the respondent as alternatively, requested by the learned advocate for the applicant. Further, the applicant can very well recourse to the remedy available to her under the law for any other grievance before the Court which is seized with the matter.

7. In the backdrop as aforesaid, present application fails and is rejected accordingly. Notice is discharged. No order as to costs.

(DR. ASHOKKUMAR C. JOSHI,J) prk