Payalben Vaibhav Jaganiya Soni ... vs Vaibhavkumar Natwarlal Jaganiya ...
2022 Latest Caselaw 1314 Guj

     C/MCA/625/2021                              JUDGMENT DATED: 04/02/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/MISC. CIVIL APPLICATION NO. 625 of 2021

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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 PAYALBEN VAIBHAV JAGANIYA SONI D/O NAVNITLAL SHANTILAL
                             SONI
                            Versus
         VAIBHAVKUMAR NATWARLAL JAGANIYA SONI
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Appearance:
MR NIKUL K SONI(5122) for the Applicant(s) No. 1
NOTICE SERVED for the Opponent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                        Date : 04/02/2022

                        ORAL JUDGMENT

1. This Court had issued Notice on 29.09.2021 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/625/2021 JUDGMENT DATED: 04/02/2022

2. Rule.

3. 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. 719 of 2021, filed by the respondent - husband under the provisions of Section 13 of the Hindu Marriage Act, 1955, before the Family Court, Surat, to the Family Court at Palanpur.

3. It is the case of the applicant that the marriage of the applicant and the respondent was solemnized on 07.02.2006 as per the rites and rituals of their caste. Out of the wedlock, they have two children. It is alleged that, after some time of the marriage, the respondent and his family members started giving physical and mental torture and cruelty to the applicant, leaving no option for the applicant but to leave the matrimonial home with her children.

4. Heard, the learned advocate appearing on behalf of learned advocate Mr. Nikul Soni for the applicant - wife. It is submitted that the respondent - husband has filed the above-referred suit before the Family Court at Surat, whereas, the present applicant resides at the mercy of her parents with her two children at Palanpur. It is submitted that the distance between Surat and Palanpur is very long i.e. about 400 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 children. Further, the applicant has no means of earning. That, although, the learned Court below has ordered interim maintenance, the respondent has not paid a single penny to the applicant till date. Furthermore, for attending the Court proceedings at Surat, the applicant would require a companion.

C/MCA/625/2021 JUDGMENT DATED: 04/02/2022

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 Palanpur, in that case, the respondent will not have to suffer this much difficulties as compared to the present applicant, moresowhen, the respondent visits Palanpur to visit their children pursuant to the visitation rights granted by the learned Court below. 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 400 kms., from Palanpur to Surat. Further, the applicant has minor children and will have to travel this long distance with them. 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.

C/MCA/625/2021 JUDGMENT DATED: 04/02/2022

5.2 In the backdrop as aforesaid, present application succeeds and is allowed accordingly. The Family Suit No. 719 of 2021, pending before the Family Court at Surat, is directed to be transferred to the Family Court at Palanpur. Upon transfer, the Family Court, Ahmedabad shall inform the parties and proceed with the matter in accordance with law.

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

[ A. C. Joshi, J. ] hiren /77