Gujarat High Court
Pinkyben @ Saritaben W/O. ... vs Dharmeshbhai Iswarbhai Bhavsar on 3 February, 2022
Bench: Ashokkumar C. Joshi
C/MCA/326/2020 JUDGMENT DATED: 03/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 326 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 NO
allowed 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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PINKYBEN @ SARITABEN W/O. DHARMENDRABHAI BHAVSAR D/O
GHANSHYAMBHAI BRAMKHASTRIYA
Versus
DHARMESHBHAI ISWARBHAI BHAVSAR
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Appearance:
MEHUL A SURATI(7870) for the Applicant(s) No. 1
RULE SERVED for the Opponent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 03/02/2022
ORAL JUDGMENT
1. This Court had issued rule on 23.02.2021 which is duly
served upon the respondent, however, the respondent has 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.
C/MCA/326/2020 JUDGMENT DATED: 03/02/2022
2. The present application under Section 24 of the Civil
Procedure Code, 1908 (the CPC) is filed by the applicant - wife
seeking transfer of Family Suit No. 1056 of 2019, filed by the
respondent - husband under the provisions of Section 9 of the
Hindu Marriage Act, 1955, before the Family Court, Vadodara, to
the Family Court at Ahmedabad.
3. It is the case of the applicant that the marriage of the
applicant and the respondent was solemnized on 16.02.2010 as
per Hindu rites and rituals. Out of the wedlock, they have one
boy child, born on 05.02.2015. It is alleged that, after some time
of the marriage, the respondent started giving physical and
mental torture and cruelty to the applicant and forcibly removed
the applicant and minor child and accordingly, since May 2018,
they are residing separately.
4. Heard, the learned advocate appearing on behalf of learned
advocate Mr. Mehul Surati for the applicant - wife. It is submitted
that the respondent - husband has filed the above-referred suit
before the Family Court at Vadodara. It is submitted that the
distance between Vadodara and Ahmedabad is very long i.e.
about 100 kms. and in the circumstance, it would be very difficult
for the applicant - wife to travel to Ahmedabad 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 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 Ahmedabad, in that case, the
respondent will not have to suffer this much difficulties as
C/MCA/326/2020 JUDGMENT DATED: 03/02/2022
compared to the present applicant. Further, the respondent 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.
5. 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 100 kms., from Vadodara
to Ahmedabad. Further, the applicant has a minor child and will
have to travel this long distance with a minor child. The
respondent has not appeared before the Court to resist the
application. 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 commonplace, where, the grounds are
genuine and convincing.
5.1 This Court has assistance of decision rendered in the case of
Minesh Rajnikant Dalal v. Avani Minesh Dalal, 2002 (2)
GLR 1685. This Court has also referred to a decision in the case
of Jayshreeba Jayendrasinh Raulji V. Jayendrasinh
ganpatsinh Raulji, rendered in MCA No. 431 of 2019.
5.2 In the backdrop as aforesaid, present application succeeds
and is allowed accordingly. The Family Suit No. 1056 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.
C/MCA/326/2020 JUDGMENT DATED: 03/02/2022
6. Rule is made absolute accordingly with no orders as to
costs.
[ A. C. Joshi, J. ]
hiren
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