Jinalben D/O Pravinsinh Vaghela ... vs Vishveshbhai Chimanbhai Dhobi
2021 Latest Caselaw 4517 Guj

        C/MCA/101/2020                              JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/MISC. CIVIL APPLICATION NO. 101 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 ?                      NO

     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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 JINALBEN D/O PRAVINSINH VAGHELA H/O VISHESHBHAI DHOBI
                          Versus
             VISHVESHBHAI CHIMANBHAI DHOBI
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Appearance:
MR GAURANG K CHAUHAN(9858) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s) No. 1
MR ATIT D THAKORE(5290) for the Opponent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 22/03/2021

                         ORAL JUDGMENT

1. The Court is convened through video conference.

2. Today, when the matter is called out, learned advocate Mr. Gaurang Chauhan is present for the applicant, however, learned advocate Mr. Atit Thakore is not available though link is

C/MCA/101/2020 JUDGMENT

sent. Earlier also, on 07.1.2021 and 04.02.2021, the learned advocate for the respondent was not available. This is third consecutive date on which, he has remained absent, for the reason best know to him. Accordingly, the Court is left with no option but to proceed with the matter.

3. 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. 874 of 2019, filed under the provisions of section 9 of the Hindu Marriage Act, 1955, before the Family Court, Vadodara, to the Family Court at Ahmedabad.

4. It is the case of the applicant that the marriage of the applicant and the respondent was solemnized on 04.06.2014 as per rites and rituals of their casts. Out of the wedlock, they have two children, one son aged 05 years and a girl aged 2 years. It is alleged that, after some time of the marriage, the respondent started giving physical and mental torture to the applicant, which eventually led the applicant to leave her matrimonial home along with two minor children and at present, she leaves in Ahmedabad. Thereafter, the applicant filed a an application under section 125 of the Criminal Procedure Code, 1973 (Code) before the Family Court at Ahmedabad for maintenance, which is pending.

5. Heard, learned advocate Mr. Gaurang Chauhan for the applicant - wife. He submitted that the respondent - husband has filed the above-referred suit before the Family Court at Vadodara for restitution of conjugal rights. It is submitted that the distance between Vadodara and Ahmedabad is about 120 kms. and in the circumstance, it would be very difficult for the applicant - wife to travel to Vadodara for attending the Court

C/MCA/101/2020 JUDGMENT

proceedings with her minor children. Further, the applicant has no means of income. Furthermore, for attending the Court proceedings at Vadodara, 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 Ahmedabad, in that case, the respondent will not have to suffer this much difficulties as compared to the present applicant as maintenance application filed by the applicant is also pending at the Family Court, Ahmedabad. Further, the respondent is earning well 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.

6. Regard being had to the submissions advanced by the learned advocate for the applicant, it appears that the applicant has filed this application for transfer of Family Suit No. 874 of 2019 from Family Court at Vadodara to the Family Court at Ahmedabad. The distance, as asserted, between Vadodara and Ahmedabad, is about 120 kms. and in the circumstances, it appears that, it would be difficult for the applicant, who is a lady having no means of income, to travel to such a distance for attending the Court proceedings at Vadodara, that too, with minor children aged about 2 years and 5 years. Besides, in such circumstances, the applicant would require a companion as also will have to incur the expense towards lodging and boarding. Further, the applicant has filed an application for maintenance before the Family Court at Ahmedabad, which is pending and accordingly, the respondent will have to travel to Ahmedabad for attending the said proceedings. As stated by the learned

C/MCA/101/2020 JUDGMENT

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, moreso when, the neither the learned advocate for the respondent nor the respondent has put in appearance on third consecutive date.

6.1 It is trite that exercise of discretion under section 24 of the CPC is commonplace, where, the grounds are genuine and convincing. This Court has assistance of decision rendered 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. In the backdrop as aforesaid, present application succeeds and is allowed accordingly. The Family Suit No. 874 of 2019, pending before the Family Court at Vadodara, is directed to be transferred to the Family Court at Ahmedabad. Upon transfer, the Family Court, Ahmedabad shall inform the parties and proceed with the matter in accordance with law.

7.1 Rule is made absolute accordingly with no orders as to costs.

[ A. C. Joshi, J. ] hiren