Kavitaben Ramchandrabhai Betai vs Naimishbhai Bhagwanjibhai ...
2022 Latest Caselaw 2544 Guj

     C/MCA/694/2021                                  ORDER DATED: 07/03/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/MISC. CIVIL APPLICATION NO. 694 of 2021

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                   KAVITABEN RAMCHANDRABHAI BETAI
                                Versus
                  NAIMISHBHAI BHAGWANJIBHAI KOTHARI
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR.AKASH J PANDYA(7206) for the Applicant(s) No. 1
MR YN RAVANI(718) for the Opponent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                             Date : 07/03/2022

                               ORAL ORDER

1. The present application under Section-24 of the Civil

Procedure Code,1908 (for short the Code) is filed by the applicant-

wife to transfer the proceeding of the Family Suit No. 46 of 2021

pending before the the Family Court at Morbi to the learned Family

Court at Rajkot, on the grounds mentioned in the memo of

application.

2. Heard learned advocate Mr. Akash Pandya for the applicant

and learned advocate Mr. Y.N. Ravani for the respondent.

3. Rule. Learned advocate Mr. Y.N. Ravani for the respondent

waives service of rule.

4. The brief facts of the case are that the marriage of the

applicant - wife and the respondent - husband was solemnized on

17.11.2019 as per the Hindu rites and rituals. That, during the

C/MCA/694/2021 ORDER DATED: 07/03/2022

period of their marriage, the applicant - wife was residing along with

the husband and now deserted by the respondent - husband. He is

not giving any maintenance to the applicant - wife. That, the

applicant - wife has filed maintenance application being Criminal

Misc. Application No. 150 of 2020 before the learned Family Court at

Rajkot, in the year 2020 and the same is pending. That, during the

pendency of the said application, the respondent - husband had not

maintained the applicant - wife. That, the applicant - wife had tried

to settle the dispute amicably but the present respondent - husband

had not even made any effort to settle the dispute amicably and the

respondent - husband had filed an application under Sections 13(1)

(1-I.A), (1-I.B) of the Hindu Marriage Act, before the Family Court at

Morbi.

5. Learned advocate Mr. Akash Pandya for the applicant

submitted that the respondent - husband is not giving any

maintenance to the applicant - wife since last 11 months. He further

contended that the respondent - husband has filed an application

under Section 13(1)(1-I.A)(1-I.B) of the Hindu Marriage Act, which is

making hurdle for the applicant - wife because the applicant is

incapable to attend the hearings of the case Morbi as the distance is

more than 70 Kms. He also contended that the Family Suit No. 46 of

2021 is filed just to harass the present applicant and the respondent

- husband is not giving a single penny to the present applicant -

wife. He contended that the applicant is having responsibility of her

C/MCA/694/2021 ORDER DATED: 07/03/2022

unmarried brother, who is suffering from epilepsy hysteria and old

mother aged about 83 years. He has urged to transfer the

proceeding of the Family Suit No. 46 of 2021 pendings before the

the Family Court at Morbi to the learned Family Court at Rajkot.

6. Per contra, learned advocate Mr. Y.N. Ravani for the

respondent - husband has vehemently argued that in the present

case, the distance between Morbi to Rajkot is only 70 Kms. He also

argued that as per the catena of decisions, the applicant is not

entitled to get the matter transferred from Morbi to Rajkot and as

such, there is no hardship to the applicant -wife in attending the

Court proceedings. He has placed reliance upon the judgment

delivered by the Hon'ble Apex Court in the case of Anindita Das

Vs. Srijit Das, reported in (2006) 9 SCC 197 and in case of

Harita Sunil Parab vs. State of NCT of Delhi and Ors, reported

in AIR 2018 SC 1624. He also placed reliance upon the order dated

14.10.2019 in case of Rutva Jitendra Patel Vs. Jay Dilipkumar

Patel passed by co - ordinate Bench in Misc. Civil Application No. 21

of 2019 and order dated 18.1.2022 in case of Varisha Varun Shah

Vs. Varun Jitendrakumar Shah in Misc. Civil Application No. 197

of 2021.

Learned Advocate for the Respondent has placed reliance

upon the judgment delivered by the Hon'ble Apex Court in the case

of Anandita Das Vs Sirjit Dey, reported in (2006) 9 SCC 197,

wherein it is held that the women are taking advantage of the

C/MCA/694/2021 ORDER DATED: 07/03/2022

leniency shown by the Courts and therefore, each case is decided

on its own merits and int that case transferred was refused, even

though woman have a young child.

7. Having considered the arguments advanced by both the sides,

in the present case, the distance between Morbi and Rajkot is very

less, i.e. about 70 Kms, further, if the respondent - husband is not

paying maintenance, in that case, the applicant is required to

approach before the concerned competent Court. This Court has

also considered the judgment of the Hon'ble Supreme Court, in the

case of Harita Sunil Parab vs. State of NCT of Delhi and Ors

(Supra), which is the latest judgment delivered in the year 2018,

wherein it is held that the apprehension of not getting fair and

impartial enquiry or trial is required to be reasonable and not

imaginary, based upon conjectures and surmises. No universal or

hard and fast rule can be prescribed for deciding transfer petition,

which will always have to be decided on facts of each case.

Convenience of party may be one of relevant considerations but

cannot override all other considerations such as availability of

witnesses exclusively at original place, making it virtually impossible

to continue with trial at place of transfer, and progress of which

would naturally be impeded for that reason at transferred place of

trial. Convenience of parties does not mean convenience of

petitioner alone who approaches court on misconceived notions of

apprehension. Convenience for purpose of transfer means

C/MCA/694/2021 ORDER DATED: 07/03/2022

convenience of prosecution, other accused, witnesses and larger

interest of society. Apprehension voiced by petitioner of possible

harm to her at Delhi is too nebulous ground for transfer. On her own

pleading petitioner has been travelling from Mumbai to Delhi long

for professional reasons. Thus, the Hon'ble Supreme Court, not

satisfied that two cases are required to be transferred to the Court

of competent jurisdiction at Mumbai and therefore, the transfer

petitions are rejected.

This Court has considered the judgment in the case of

Gayatri Mohapatra Vs. Ashit Kumar Panda reported in (2003)

11 Supreme Court Cases 731, wherein it is held that transfer of

proceedings in the matrimonial dispute, where the ability to travel

and where the petitioner wife had filed petition for transfer (to

Cuttack, Orissa) of matrimonial case filed by the respondent

husband (before the Family Court, Meerut) on ground that she

would not be able to travel to attend the hearing, but pleadings

established that she had travelled from place to place in connection

with her family business and held that her ground was not a valid

one for seeking transfer.

This Court has also considered the judgment of the Hon'ble

Apex Court in the case of Anindita Das Vs. Srijit Das (Supra),

wherein, it is held that transfer of proceedings in the matrimonial

disputes, where the wife has filed a transfer petition on the ground

of her difficulty to attend the Court at Delhi because of having a

C/MCA/694/2021 ORDER DATED: 07/03/2022

child of six years, having no source of income and not keeping good

health. The leniency to ladies shown by court in such transfer

matters often misused and taken advantage of by women, so court

is now required to consider each petition on its merits. In that case,

grandparents were available to look after the child and respondent

was willing to bear all expenses for travel and stay of the petitioner

and her companion for every visit to attend court at Delhi. The

petitioner except for stating that she was not keeping good health,

gave no particulars and she can apply for exemption from attending

Court at Delhi on a particular date and court will consider the same

on merits. Thus, no ground for transfer made out and directions

given to respondent and Family Court.

8. Keeping in mind the dictum of the above decisions, this Court

is of the opinion that the pursuant to the facts and circumstances of

the case, this is not fit case to exercise discretion under Section 24

of the Civil Procedure Code to transfer the matter from Morbi to

Rajkot and the Hon'ble Supreme Court has observed that there is no

need of liberal approach in the case of transfer of the matter. The

learned advocate for the respondent - husband has also placed

reliance upon order passed in the the Misc. Civil Application No. 21

of 2019, where in this Court opined that the transfer petition was

dismissed and the travelling expenses to attend the Court

proceedings was awarded and in the present case circumstances

are different.

       C/MCA/694/2021                          ORDER DATED: 07/03/2022




8.1    This Court has also considered the order in case of Rutva

Jitendra Patel Vs. Jay Dilipkumar Patel, and order passed in the

case of Varisha Varun Shah Vs. Varun Jitendrakumar Shah

passed in Misc. Civil Application No. 197 of 2021, wherein also this

court disallowed the application of the applicant -wife and awarded

expenses for attending the court proceedings to the applicant.

Further, in this case, the distance is very short between Morbi to

Rajkot, upon such premises also the application is not required to be

allowed.

9. On all such grounds In-fleri, and in view of the facts and

circumstances mentioned above, this Court is of the opinion that the

present application is devoid of merit and deserves to be dismissed

and accordingly is dismissed. However, the respondent - husband

is directed to pay Rs.1000/- for to and fro expenses including

ancillary expense to the applicant - wife as and when she attains the

proceedings at Family Court at Morbi. Rule is discharged.

(A. C. JOSHI,J) prk