Bhumiben Ashishbhai Makwana D/O ... vs Ashishbhai Bhupatbhai Makwana
2022 Latest Caselaw 3428 Guj

       C/MCA/914/2021                                   ORDER DATED: 24/03/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/MISC. CIVIL APPLICATION NO. 914 of 2021

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      BHUMIBEN ASHISHBHAI MAKWANA D/O JANAKBHAI LABHUBHAI
                           CHAUHAN
                             Versus
                ASHISHBHAI BHUPATBHAI MAKWANA
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Appearance:
MR. VISHAL P THAKKER(7079) for the Applicant(s) No. 1
MS NALINIBEN JADEJA(2529) for the Applicant(s) No. 1
MR.VISHAL J DAVE(6515) for the Opponent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 24/03/2022

                               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 Family Suit No.

756 of 2021, filed by the Respondent - Husband, under

Section 13 of the Hindu Marriage Act, which is pending

before the Family Court at Surat to the Family Court at

Bhavnagar.

[2] Heard learned advocates for the respective parties at

length.

[3]     Rule.

[4]     It is the case of the applicant - wife that she got

married with            the respondent on 29.1.2015 as per Hindu







        C/MCA/914/2021                                         ORDER DATED: 24/03/2022

rights and customs. That the Applicant - Wife started

residing at her matrimonial home in a joint family. That

in the initial days, the matrimonial life of the

Applicant and the Respondent herein, was good, and out of

wedlock, one daughter Divyata was born on 19.12.2015 and

within few months of married life, the Respondent's

family, started fighting and abusing the Applicant and

started torturing her stating that she has not brought

anything in dowry. That the Applicant has preferred an

Application for maintenance under Section 125 of Cr.P.C.

before the learned Family Court at Bhavnagar and she has

also filed an Application being Criminal Misc.

Application No. 493 of 2020 under Section 125(3) of the

Code of Criminal Procedure before the learned Family

Court at Bhavnagar as the Respondent husband is not

paying the maintenance as ordered by the learned Family

Court. It is further the case of the Applicant that the

Applicant is residing at Bhavnagar after being deserted

by the Respondent Husband since the year 2018 and the

Applicant has no means of income and she is dependent on

her parents which is causing immense prejudice and

hardships to the Applicant to attend HMP proceedings at

Surat being totally dependent on her parents. That the

Applicant's parents are facing financial crisis and the

father of the Applicant is a senior citizen with limited

C/MCA/914/2021 ORDER DATED: 24/03/2022

source of income. It is practically very difficulty if

the father of the Applicant accompanies the Applicant to

attend the court proceedings at Surat, which is more than

360 kmts away from Bhavnagar. Further, the Respondent -

Husband has not paid even a single penny as ordered by

the learned Family Court, Bhavnagar. That the Applicant

has to remain personally present on number of occasions,

more particularly when the evidence begins, for which,

the Applicant has to spend huge amount towards Advocate

fees and travelling expenses and since the Applicant has

no substantial source of income, the Applicant is finding

it very difficult to attend the matter at Surat and she

is put to great hardships and is finding it very

difficult to maintain and manage several routine

expenses.

[5] Learned advocate for the applicant submitted that

the applicant is a poor lady and the Respondent - Husband

has preferred the HMP for divorce only with a view to

harass the Applicant physically, mentally and financially

and to defame her in the society. The Applicant has to

travel approximately 360 kmts. from Bhavnagar to Surat

for attending court proceedings at Surat. The Applicant

- Wife is the mother of a girl child and her financial

condition is so bad that she cannot make arrangement for

C/MCA/914/2021 ORDER DATED: 24/03/2022

her traveling expenses. The Applicant - Wife being

mother of a girl child would always face difficulty in

traveling along with her child from Bhavnagar to Surat,

which is approximately 360 kmts.

In support of his submission, learned Advocate has

submitted that, in catena of decisions, the Hon'ble Apex

Court as also this Hon'ble Court has laid down that in

such type of cases, convenience of the wife has to be

considered. Learned Advocate for the Applicant has

therefore submitted that the proceedings, which are

pending before the Family Court at Surat may be

transferred to the Family Court at Bhavnagar.

[6] Per contra, learned Advocate for the Respondent has

heavily opposed this Miscellaneous Civil Application and

submitted that as such there is no hardship caused to the

Applicant, and therefore, the present Misc. Civil

Application deserves to be disallowed by this Hon'ble

Court. He has further submitted that the only ground for

transfer as mentioned in the present Application is in

relation to the inconvenience of Applicant - Wife to

travel due to her financial conditions and since the

Applicant - Wife has a child, therefore, in view of the

settled position of law, when the husband is ready to pay

the travel expenses and make necessary arrangements for

C/MCA/914/2021 ORDER DATED: 24/03/2022

travel, the transfer Petition of wife may not survive.

In support of his submission, the learned Advocate

for the Respondent has relied upon the judgment of this

Hon'ble Court in the case of Labhuben v. Sajanbhai

Bhikhubhai Odedara, reported in 2022 SCC OnLine Guj 86,

and submitted that looking to the same set of facts and

circumstances in the aforesaid judgment the present

Application may not be entertained and the same is

therefore deserves to be dismissed by this Hon'ble Court.

[7] Considering submissions made by the learned advocates

for the respective parties, it appears that it would be

difficult for the applicant to travel about 360 kms from

Bhavnagar to Surat and the applicant is a poor lady and

is having a minor girl child. Therefore, naturally, the

Applicant is facing hardships. Further, there are also

two proceedings pending before the Family Court at

Bhavnagar and therefore this Court is in full agreement

with the submissions made by the learned Advocate for the

Applicant.

This Court is in agreement with the reliance placed

by the learned Advocate for the Respondent in the case of

Labhuben v. Sajanbhai Bhikhubhai Odedara (supra), but

simultaneously, it is observed by this Court that every

C/MCA/914/2021 ORDER DATED: 24/03/2022

case has different facts and circumstances and the Court

has to consider each Petition on its merits. However, in

the present case in hand, the Applicant is a housewife

and also having a minor girl child, who has to travel

more than 700 kmts (two sides), and the Respondent -

Husband has not paid even a single penny to the Applicant

wife on the Application filed under Section 125 of

Cr.P.C. by the Applicant - Wife. Therefore, the facts and

circumstances are different in the present case on hand

and therefore the judgment cited at the bar is not

helpful to the learned Advocate for the Respondent.

This Court has also considered the decisions

rendered in case of Minesh Rajnikant Dalal v/s. Avani

Minesh Dalal, reported in 2002 (2) GLR 1685 and has also

referred to the decision in the case of Jayshreeba

Jayendrasinh Raulji Vs. Jayendrasinh ganpatsinh Raulji in

MCA no. 431 of 2019. The learned advocate for the

respondent has not much contested so far as the financial

aspect of the Applicant is concerned and with regard to

the hardships of the opponent, therefore this is a fit

case to exercise discretion under section 24 of CPC for

transferring the matter from Bhavnagar to Surat.

The application is allowed. The Family Suit No. 756

C/MCA/914/2021 ORDER DATED: 24/03/2022

of 2021, pending before the Family Court at Surat is

ordered to be transferred to the Family Court at

Bhavnagar. Rule is made absolute. No orders as to cost.

Direct service is permitted.

(A. C. JOSHI,J)

J.N.W