Ushaben Amarshibhai Chavda D/O ... vs Mansukhbhai Bhaylalbhai Parmar
2022 Latest Caselaw 5326 Guj

     C/MCA/580/2021                            JUDGMENT DATED: 21/06/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/MISC. CIVIL APPLICATION NO. 580 of 2021


FOR APPROVAL AND SIGNATURE:                             SD/-


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1    Whether Reporters of Local Papers may be                       No
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                        No

3    Whether their Lordships wish to see the fair                   No
     copy of the judgment ?

4    Whether this case involves a substantial                       No
     question of law as to the interpretation of the
     Constitution of India or any order made
     thereunder ?

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USHABEN AMARSHIBHAI CHAVDA D/O AMARSHIBHAI PUNJABAHI
                          CHAVDA
                           Versus
            MANSUKHBHAI BHAYLALBHAI PARMAR
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Appearance:
RICHA SHAH(7541) for the Applicant(s) No. 1
MR PRAVIN GONDALIYA(1974) for the Opponent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                       Date : 21/06/2022
                        ORAL JUDGMENT

1. Rule. Mr. Keval Brahmbhatt, learned advocate waives service of notice of rule for the opponent - husband.

C/MCA/580/2021 JUDGMENT DATED: 21/06/2022

2. Heard Ms. Richa Shah, learned advocate for the applicant and Mr. Keval Brahmbhatt, learned advocate for Mr. Pravin Gondaliya, learned advocate for the opponent.

3. This application is filed by the applicant - wife, under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"), praying for transferring the H.M.P. Suit No. 25 of 2019 pending in the Court of Additional Chief Judicial Magistrate, Gondal to the Family Court, Porbandar, within whose jurisdiction she resides.

4. Ms. Richa Shah, learned advocate for the applicant, submitted that she is a lady, aged 35 years, staying with her parents at Porbandar, where she had filed a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") against the opponent - husband at Porbandar, where husband is appearing.

5. It is further submitted that an FIR for an offence under Section 498A of Indian Penal Code is also filed against the husband at Porbandar, where he is supposed to appear, as and when trial commences. It is further submitted that the distance between Gondal to Porbandar is approximately 180 Kms (which is disputed by the learned advocate for the opponent to be 140 Kms), and therefore, it is difficult for her to attend the Court at Gondal from Porbandar, despite an order of maintenance pendente lite is ordered by the Court to be paid along with a cost of Rs.300/- per adjourned date, if she appears before the Court, to be paid by the husband. Therefore, she has requested the Court to allow this application as aforesaid.

6. As against that, Mr. Keval Brahmbhatt, learned advocate for Mr. Pravin Gondaliya, learned advocate for the opponent submitted that the family Court at Gondal, while ordering

C/MCA/580/2021 JUDGMENT DATED: 21/06/2022

maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955, made provision for granting Rs.300 per adjournment in the said suit if she attends the Court.

7. He has further submitted that a case cannot be transferred merely because she is a lady and staying at quite a distance from the place, where suit is filed by the husband. It is further submitted that as a litigant, it is for the plaintiff and the provisions of the Code, within whose jurisdiction suit is to be filed when the husband being plaintiff in the suit as ' Dominus Litis', has a right to choose the Court when there are more than one Court having jurisdiction to entertain the suit.

8. He has further submitted that mere convenience of applicant - wife may not be enough for the exercise of power of transferring a case but it must also be shown that the trial in the chosen forum by the husband will result in denial of justice. Relying on the decisions of the Supreme Court in the following cases:-

(i) Anindita Das v/s Srijit Das (2006) 9 SCC 197

(ii) M. Sivgami v/s R. Raja (2005) 12 SCC 301

(iii) Preeti Sharma v/s Manjit Sharma (2005) 11 SCC 535

(iv) Kalpana Deviprakash Thakar v/s Dr. Deviprakash Thakar (Supra) Case number: T.P.(C)No.-000170-000170/1996 Diary number: 70521 / 1996

It is submitted that the Supreme Court has taken note of leniency shown by it, in transferring the case, being misused and taken advantage of by women. Therefore, he has submitted that merely because the applicant is a lady and it is not convenient for her to easily appear before the Court where suit is filed, may not be a reason to transfer the case.

C/MCA/580/2021 JUDGMENT DATED: 21/06/2022

9. He has further submitted that either to meet with ends of justice or if it is found that it is expedient to transfer the case, it shall not be transferred, merely on asking for the same. Therefore, he has submitted that the present application be rejected.

10. Having heard learned advocates for the parties and going through the papers annexed with the application as also the affidavit-in-reply filed by the opponent - husband and documents annexed with it, it is undisputed that the applicant - wife has already filed the proceedings under the Indian Penal Code as also the maintenance proceedings under Section 125 of "CrPC" as also police case under Section 498A of the Indian Penal Code before the Court at Porbandar, where the opponent

- husband is appearing.

11. It is not the only ground of convenience but at the same time, she being lady, aged about 35 years, may have to travel for about approximately 6 hours in all, to and fro, for attending the Court, which would not be desirable normally. At the same time, when husband is already facing two other proceedings filed at the instance of the applicant - wife, that too, at Porbandar, he could also attend this very case at Porbandar along with those other cases. It is also convenient for him to attend all the three cases on one day, if requested by him to the Court concerned. Therefore, it is for the convenience of one and all, including the opponent - husband to transfer the aforesaid case at Family Court, Porbandar. Not only that, it is just and expedient in the interest of justice, transferring the same will meet the ends of justice too. The decisions of the Supreme Court relied on by the learned advocate for the opponent are while exercising power of transfer by the Supreme Court under Section 25 of "the Code" from one State

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to another. However, considering the aforesaid decisions, it is very clear that on an experience by the Supreme Court, such powers when exercised, are misused by parties, the Supreme Court has said that it should not be transferred. However, there is no complaint at all in the present case or even an apprehension of a misuse of that power of this Court to transfer the said case. There is no other complaint against the applicant

- wife or any of her family members, while attending the Courts by the opponent - husband at Porbandar in two of the cases as aforesaid.

Therefore, I deem it fit to transfer the H.M.P. No. 25 of 2019 pending before the Court of Additional Chief Judicial Magistrate, Gondal to Family Court at Porbandar. The parties are directed to appear before the Family Court at Porbandar on 22.08.2022.

12. Mr. Keval Brahmbhatt, learned advocate for Mr. Pravin Gondaliya, learned advocate for the opponent, submitted that since the case is ordered to be transferred at a place where applicant - wife is residing, the direction issued by the Family Court, Gondal while determining the maintenance pendente lite, directing opponent to pay Rs.300 on each adjourned dates may be quashed and set aside, to which Ms. Richa Shah, learned advocate for the applicant, has no objection. Therefore, in the suit, which is ordered to be transferred, the order dated 22.03.2021 passed by the Additional Chief Judicial Magistrate, Gondal, below Exhibit-13, while determining maintenance pendente lite is modified to the extent, whereby husband is directed to pay Rs.300 to the applicant - wife on an adjourned date, when she remains present before that Court. Rest of the order is to be followed by the opponent - husband.

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13. Additional Chief Judicial Magistrate, Gondal, District Rajkot, shall transfer H.M.P. Suit No. 25 of 2019 pending before it through learned Principal District Judge, Rajkot to the Family Court, Porbandar within a reasonable time after receipt of the Writ of this Court.

In view thereof, Rule made absolute.

SD/-

(UMESH A. TRIVEDI, J.) Raj