Bhavnaben Omdatt Modhiya ... vs Ashokkumar Bhikhabhai Yadav
2021 Latest Caselaw 4599 Guj

        C/MCA/74/2020                                     JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/MISC. CIVIL APPLICATION NO. 74 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI                          Sd/-

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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 ?                          No

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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                BHAVNABEN OMDATT MODHIYA (MULIYA)
                             Versus
                  ASHOKKUMAR BHIKHABHAI YADAV
==========================================================
Appearance:
MR. GNANESH G BHATT(10015) for the Applicant(s) No. 1
UNSERVED REFUSED (N)(10) for the Opponent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 23/03/2021

                         ORAL JUDGMENT

1. The Court is convened through video conference.

2. This Court had issued rule on 22.01.2020 and direct service was granted but the rule was unserved refused. The matter was adjourned thereafter from time to time, however, the respondent put in no

C/MCA/74/2020 JUDGMENT

appearance, either in person or through an advocate. The other side is duly served and last time, this Court has also observed that learned advocate for the applicant has requested for fresh rule and the same is refused and therefore, as per the settled principles of law under The Evidence Act, it is deemed as served. Further, since sufficient opportunity is given to the respondent, but he has not appeared before this Court and therefore, this Court has decided to have final hearing of this 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. 1589 of 2019, filed under the provisions of section 13 of the Hindu Marriage Act, 1955, before the Family Court, Ahmedabad to the Family Court at Surendranagar.

4. It is the case of the applicant that the marriage of the applicant and the respondent was solemnized on 03.02.2001 as per Hindu rites and rituals. 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 accordingly, since February 2001, the applicant is residing at her parental home. Thereafter, the applicant has also filed a Criminal Misc. Application No. 02 of 2005 under section 125 of the Criminal Procedure Code, 1973 (Code) before the Family Court at Surendranagar for maintenance.

5. Heard, learned advocate Mr. Gnanesh Bhatt for the applicant -wife. He submitted that the respondent - husband has filed the above­referred suit before the Family Court at Ahmedabad. It is submitted that the applicant is a housewife and she is dependent on her brother and further

C/MCA/74/2020 JUDGMENT

she has mentally retarded sister. It is submitted that in the petition it is stated that the respondent­husband is casual labourer, but in fact, he is an officer in a private company and his income is approximately Rs.20,000/­ to Rs.25,000/­ per month. It is submitted that the distance between Ahmedabad and Surendranagar is very long i.e. about 260­270 kms in two ways. and in the circumstance, it would be very difficult for the applicant - wife to travel from Surendranagar for attending the Court proceedings. Further, the applicant has no means of earning, whereas, the respondent is well­to­do. Furthermore, for attending the Court proceedings at Ahmedabad, 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 Surendranagar, 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 well­to­do 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.

6. 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 260­270 kms. In two ways, from Surendranagar to Ahmedabad. Further, the applicant has filed an application for maintenance at the concerned Court at Surendranagar and accordingly, the respondent will have to travel to Surendranagar for attending the said proceedings. Further, the fact remains that the maintenance application which is filed under Section 125 of the Criminal Procedure Code is filed at Surendranagar is uncontroverted at this juncture and no maintenance is given which is also uncontroverted at this juncture. As

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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 commonplace, where, the grounds are genuine and convincing.

6.1 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.

6.2 In the backdrop as aforesaid, present application succeeds and is allowed accordingly. The Family Suit No. 1589 of 2019, pending before the Family Court at Ahmedabad, is directed to be transferred to the Family Court at Surendranagar. Upon transfer, the Family Court, Surendranagar shall issue notice to both the parties and proceed with the matter in accordance with law.

7. Rule is made absolute accordingly with no orders as to costs. Direct service is permitted through fax / e­mail / any other electronic mode.

Sd/-

(A. C. JOSHI,J) TAUSIF SAIYED