Gujarat High Court
Sureshbhai Dharmendrabhai ... vs Sunitaben Sureshbhai ... on 14 February, 2022
Bench: Ashokkumar C. Joshi
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 631 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 YES
allowed 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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SURESHBHAI DHARMENDRABHAI MULCHANDANI
Versus
SUNITABEN SURESHBHAI MULCHANDANI
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Appearance:
MR TEJAS D SHUKLA(5312) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s) No. 1
MS RAKSHA S DIKSHIT(5568) for the Opponent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 14/02/2022
ORAL JUDGMENT
1. Rule.
2. The present application under Section 24 of the Civil
Procedure Code, 1908 (the CPC) is filed by the applicant -
husband seeking transfer of Family Suit No. 164 of 2021 (Old No.
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
HMP No. 111 of 2019), filed by the respondent - wife under the
provisions of Section 13 of the Hindu Marriage Act, 1955 for
divorce, pending in the Family Court at Gandhinagar to the
Family Court at Bhavnagar.
3. It is the case of the applicant that the marriage of the
applicant and the respondent was solemnized on 19.01.2011 as
per the Hindu rites and rituals. Out of the wedlock, they have
two children. It is alleged that, after some time of the marriage,
the respondent - wife started picking up quarrels with the
applicant on flimsy grounds and eventually, left the matrimonial
home, leaving two children with the applicant only..
4. Heard, learned advocate Mr. Tejas Shukla for the applicant
- husband and learned advocate Ms. Raksha Dikshit for the
respondent - wife.
4.1 The learned advocate for the applicant submitted that the
respondent - wife has filed the above-referred suit before the
concerned Court at Gandhinagar, whereas, the present applicant
resides with two children at Bhavnagar. It is submitted that the
distance between Gandhinagar and Bhavnagar is very long i.e.
almost about 200 kms. Further, referring to the medical
certificate dated 25.09.2018, issued by the Department of
Empowerment of Persons with Disabilities, the learned advocate
for the applicant submitted that the applicant is having
permanent disability of 30% low vision and accordingly, it would
be difficult for the applicant to travel to Gandhinagar for
attending the Court proceedings with his minor children. Further,
the applicant is doing petty work and selling cutlery and thus
doing petty work and accordingly, has no sufficient means of
earning. Furthermore, for attending the Court proceedings at
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
Gandhinagar, 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.
4.2 The learned advocate for the applicant further submitted
that, in fact the respondent is residing at Bhavnagar only and
with a view to harass the present applicant, suit in question is
filed at the Court at Gandhinagar. Otherwise, the respondent had
filed an FIR as well as an application for maintenance before the
concerned authority/Court at Bhavnagar only.
4.3 It is further submitted that the applicant has, besides
responsibility of his two children, responsibility of his aged
parents also, whereas, the respondent has no such liability and
accordingly, if the suit is transferred to Bhavnagar, in that case,
the respondent will not have to suffer these much difficulties as
compared to the present applicant and there is no question of
comparative hardship. Making above submissions, it is requested
that present application may be allowed as requested for.
5. Per contra, learned advocate Ms. Raksha Dikshit for the
respondent - wife, while heavily opposing the present application,
submitted that the respondent - wife has filed the aforesaid suit
for divorce before the concerned Court at Gandhinagar. It is
submitted that after some time of the marriage, the applicant
started harassing the respondent and used to give physical and
mental torture and in the year 2017, removed the respondent
from her matrimonial home and therefore, the respondent wife
also lodged an FIR for the offence punishable under Section 498-
A IPC and also filed an application for maintenance in which, the
Court concerned has granted maintenance of Rs.1,500/- per
month. It is submitted that the applicant has not cared about the
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
respondent nor has done any arrangement for her sustenance
after her removal from the matrimonial home and accordingly,
she has filed the suit for divorce at the competent Court at
Gandhinagar and in such set of facts, it is requested that this
application may be rejected being devoid of any merits.
6. The Court has heard the learned advocates for the
respective parties and also perused the material on record. This
application is filed by the applicant - husband for transfer of the
family suit in question from the Court of learned Principal Senior
Civil Judge, Gandhinagar to the Family Court at Bhavnagar. If the
distance between the two places is seen, the same is about 200
kms. Further, the learned advocate for the applicant has
contended that the applicant has permanent disability of 30% low
vision and accordingly, the Court has perused the Certificate
dated 25.09.2018 at Annexure 'G' to the application, which is
issued by the Department of Empowerment of Persons with
Disabilities, Ministry of Social Justice and Empowerment,
Government of India, which reads as under:
"Certificate No.: GJ1410719800028673
This is to certify that I/We have carefully examined Shri
Sureshbhai Dharmendrabhai Mulchandani Son of Shri
Dharmendrabhai Date of Birth 01/07/1980 Age 378 Year(s)
Male, Registration No. 2414/00000/1809/0739412 resident
of House No. Plot No. - 1257, Shyam Sundar Appartment,, F
Building-1, Ghogha Circle,, Bhavnagar - Whose photograph
is affixed above, and I/We satisfied that:
(A) He is a case of Low Vision
(B) The dignosis in his case is LEFT EYE: PHTHISICAL EYE,
RIGHT EYE NORMAL
(C) He has 30% (in figure) Thirty percent (in words)
Permanent in relation to his (part of body) as per
guidelines (to be specified)."
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
6.1 Thus, a perusal of the above certificate substantiates the
fact that the applicant is having 30% low vision in his left eye.
Besides, indisputably, the two children born out of the said
wedlock, have been residing with the applicant only and
accordingly, he has responsibility of his minor children also.
Further, as submitted by the learned advocate for the applicant,
the applicant has responsibility of his old aged parents also.
6.2 Further, the learned advocate for the applicant has stated
that the applicant, in fact, is residing at Bhavnagar only. In this
regard, if the material on record is seen, the respondent - wife
had filed an application for maintenance being Criminal Misc.
Application No. 275 of 2017 and such application was filed at the
Family Court at Bhavnagar only, and cause-title in the same if
referred, it shows the address of the applicant - respondent
herein at Bhavnagar only. Further, the respondent has lodged an
FIR against the present applicant for the offence punishable
under Section 498-A IPC etc. before the concerned police station
at Bhavnagar only and both these proceedings, she pursued at
Bhavnagar only. Further, a perusal of the order dated
17.09.2019, passed by the learned Judge, Family Court at
Bhavnagar reveals that the respondent is granted monthly
maintenance of Rs.1,500/- from the applicant herein.
6.3 Accordingly, upon analysis of the submissions made vis-a-
vis the facts and circumstances of the case, this Court is of the
considered opinion that the matter requires favourable
consideration, moresowhen, the exercise of discretion under
Section 24 of the CPC is commonplace, where, the grounds are
genuine and convincing.
6.4 This Court has assistance of decision rendered in the case
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
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.
6.5 At this juncture, it would be worthwhile to refer to a
decision of the Apex Court in Amandeep Goyal v. Yogesh
Rani, AIR 2016 SC 4833, wherein, transfer sought by the
husband was granted. The decision reads as under:
"1. Heard the learned counsel for the parties.
2. Leave granted.
3. The appellant-husband has filed the present appeal
by way of special leave against the order dated 6.4.2015
passed in T.A. No.496 of 2013 by the High Court of Punjab
and Haryana at Chandigarh, in and by which the High Court
transferred the Divorce Petition from Sangrur to Bathinda.
4. Looking at the peculiar facts of the case, more
particularly when the husband is taking care of the
child who is nine years old and is suffering from
malignant disease, in our opinion, the High Court
should have used its discretion in favour of the
petitioner-husband. We, therefore, set aside the
impugned order.
5. The case bearing Regn. No. DMC/314/2015 (Filing
No.1256/2015) titled Amandeep Goyal v. Yogesh Rani be
transferred from the Court of Additional District Judge,
Bathinda, Punjab to the Court of District and Sessions
Judge, Sangrur, who may hear the case himself/herself or
assign the same to any other court of competent
jurisdiction.
6. The appeal is disposed of as allowed with no order as
to costs."
7. In the backdrop as aforesaid, present application succeeds
and is allowed accordingly. The Family Suit No. 164 of 2021 (Old
C/MCA/631/2021 JUDGMENT DATED: 14/02/2022
No. HMP No. 111 of 2019), pending before the Family Court at
Gandhinagar, 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.
7.1 Rule is made absolute accordingly with no orders as to
costs.
[ A. C. Joshi, J. ]
hiren
