Gujarat High Court
Riddhi Mihir Jariwala vs Mihir Hariharbhai Jariwala on 19 January, 2021
Bench: Ashokkumar C. Joshi
C/MCA/573/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 573 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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RIDDHI MIHIR JARIWALA
Versus
MIHIR HARIHARBHAI JARIWALA
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Appearance:
MR DHRUV D DESAI(9909) for the Applicant(s) No. 1
SERVED BY RPAD (N)(6) for the Opponent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 19/01/2021
ORAL JUDGMENT
1. The Court is convened through video conference.
2. This Court had issued notice on 15.10.2020 and direct
service through RPAD was granted. The notice is duly served
upon the respondent and the learned advocate for the applicant
has also filed the direct service affidavit. The matter was
C/MCA/573/2020 JUDGMENT
adjourned thereafter from time to time, however, the respondent
put in no appearance, either in person or through an advocate.
Accordingly, the Court is left with no option but to proceed with
the matter.
3. Rule.
4. The present application under section 24 of the Civil
Procedure Code, 1908 (CPC) is filed by the applicant - wife
seeking transfer of Family Suit No. 853 of 2019, filed under the
provisions of section 13 of the Hindu Marriage Act, 1955, before
the Family Court, Surat, to the Family Court at Bhavnagar.
5. It is the case of the applicant that the marriage of the
applicant and the respondent was solemnized on 18.02.2011 as
per Hindu rites and rituals. Out of the wedlock, they have one
child, aged 7 years now. It is alleged that, after few months of
the marriage, the respondent and his family members started
giving physical and mental torture to the applicant and forcibly
removed the applicant and minor child and accordingly, since
December 2018, the applicant is residing at her parental home
with her child. Thereafter, the applicant has also filed a Criminal
Misc. Application No. 140 of 2019 under section 125 of the
Criminal Procedure Code, 1973 (Code) before the Family Court at
Bhavnagar for maintenance. The applicant has also filed an
application under the provisions of the Domestic Violence Act
before learned Chief Judicial Magistrate, Bhavnagar.
6. Heard, learned advocate Mr. Dhruv Desai for the applicant -
wife. He submitted that the respondent - husband has filed the
above-referred suit before the Family Court at Surat. It is
submitted that the distance between Surat and Bhavnagar is very
C/MCA/573/2020 JUDGMENT
long i.e. about 360-370 kms. and in the circumstance, it would be
very difficult for the applicant - wife to travel to Surat for
attending the Court proceedings with her minor child. Further,
the applicant has no means of earning, whereas, the respondent
is well-to-do. Furthermore, for attending the Court proceedings
at Surat, the applicant would require a companion. Besides, in
view of the distance between the two places, the applicant will
have to incur expenses towards lodging and boarding also. The
learned advocate for the applicant further submitted that, as
against this, if the suit is transferred to Bhavnagar, in that case,
the respondent will not have to suffer this much difficulties as
compared to the present applicant. Further, the respondent
belongs to a well-to-do family and is hale and hearty and hence,
there would be no question of comparative hardship. Making
above submissions, it is requested that present application may
be allowed as requested for.
7. Regard being had to the submissions advanced by the
learned advocate for the applicant, it appears that it would be
difficult for the applicant to travel about 360-370 kms., from
Bhavnagar to Surat. Further, the applicant has a minor child and
will have to travel this long distance with a minor child. Further,
the applicant has filed an application for maintenance as well as
an application under the Domestic Violence Act at the concerned
Courts at Bhavnagar and accordingly, the respondent will have to
travel to Bhavnagar for attending the said proceedings. As
stated by the learned advocate for the applicant, there is no case
of comparative hardship and in the circumstances, this Court is of
the considered opinion that the matter requires favourable
consideration, moresowhen, the respondent has put in no
appearance despite sufficient opportunity is given and when the
exercise of discretion under section 24 of the CPC is
C/MCA/573/2020 JUDGMENT
commonplace, where, the grounds are genuine and convincing.
7.1 This Court has assistance of decisions rendered in the case
of Sumita Singh v/s Kumar Sanjay, reported in AIR 2002 SC
36 and in the case of Minesh Rajnikant Dalal v/s. Avani
Minesh Dalal, reported in 2002 (2) GLR 1685. This Court has
also referred to a decision in the case of Jayshreeba
Jayendrasinh Raulji Vs. Jayendrasinh ganpatsinh Raulji,
rendered in MCA No. 431 of 2019.
7.2 In the backdrop as aforesaid, present application succeeds
and is allowed accordingly. The Family Suit No. 853 of 2019,
pending before the Family Court at Surat, is directed to be
transferred to the Family Court at Bhavnagar. Upon transfer, the
Family Court, Bhavnagar shall inform the parties and proceed
with the matter in accordance with law.
8. Rule is made absolute accordingly with no orders as to
costs. Direct service is permitted through fax / e-mail / any other
electronic mode.
[ Dr. Ashokkumar C. Joshi, J. ]
hiren
