Persis Bhavin Shah D/O Bipin Shah vs Bhavin Kishorbhai Shah S/O ...
2022 Latest Caselaw 8895 Guj

        C/MCA/409/2022                            ORDER DATED: 07/10/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/MISC. CIVIL APPLICATION NO. 409 of 2022

======================================
            PERSIS BHAVIN SHAH D/O BIPIN SHAH
                          Versus
      BHAVIN KISHORBHAI SHAH S/O KISHORBHAI SHAH
======================================
Appearance:
MR KP CHAMPANERI(5643) for the Applicant(s) No. 1
ABHISST K THAKER(7010) for the Opponent(s) No. 1
MS RADHA A THAKER(11299) for the Opponent(s) No. 1
======================================
 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
                            Date : 07/10/2022
                                 ORAL ORDER

1. This application is filed under Section 24 of the Code

of Civil Procedure, 1908, praying for transfer of Family Suit No.

1216 of 2021 pending before the Family Court, Vadodara to the

Family Court at Rajkot, by the applicant - wife.

2. Heard Mr. K.P. Champaneri, learned advocate for the

applicant. According to his submission, the applicant - wife has

filed proceedings for maintenance at Rajkot, whereas

proceedings for custody of a child is filed by the husband, that

too, at Rajkot because of the territorial jurisdiction. He has

further submitted that in any case, respondent - husband is

attending both the proceedings at Rajkot, and therefore, the

divorce proceedings filed by him at Vadodara may also be

C/MCA/409/2022 ORDER DATED: 07/10/2022

transferred to Family Court, Rajkot, so that all the three cases

can be attended to by the respondent - husband on one day

only.

2.1 He has further submitted that distance between

Vadodara to Rajkot is approximately 300 kms one way and it

would be most inconvenient for her to travel 600 kms per day,

in case of attending or instructing her advocate as and when

necessary, as it consumes at least two days for attending or

instructing her advocate in the Court.

2.2 He has further submitted that she is having a child,

aged about 10 years, who is also studying in school and it may

be inconvenient for her to leave the child with parents, who are

aged more than 70 years.

2.3 It is further submitted that the parents are having

age-related medical problems, and therefore also, for a few

hours it is most inconvenient for her to attend either Court

proceeding at Vadodara or to instruct her advocate, who is

engaged at Vadodara, and therefore, she has prayed for

transfer of a case as aforesaid.

2.4 In support of his assertion, he has relied on a

decision in the case of Sumita Singh v. Kumar Sanjay and

C/MCA/409/2022 ORDER DATED: 07/10/2022

another, reported in (2001) 10 SCC 41, for a proposition that

the convenience of the wife must be looked into for transferring

of a case.

2.5 He has further relied on a decision in the case of

Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap,

reported in (2016) 14 SCC 356, for a proposition that looking

at the distance between two places, comparative hardship is

more to the wife, and therefore, the Supreme Court thought it

fit to transfer a case from one place to another at the instance

of the wife.

2.6 He has further relied on a decision of this Court in

the case of Sonal Shreyansh Vasa The Daughter of

Gaurishankar L. v. Shreyansh Hitenbhai Vasa, reported in

2013 (3) GLR 2759, referring para 8.6 as also paragraph Nos.

15, 16 and 19 thereof, and requested the Court to transfer the

case from Vadodara to Rajkot.

3. As against that, Mr. Abhisst K. Thaker, learned

advocate for the respondent - husband submitted that the

applicant - wife has already appointed her advocate and it is

not that on all adjourned dates, she is required to attend the

Court.

        C/MCA/409/2022                          ORDER DATED: 07/10/2022




3.1             He has further submitted that she can even pray for

exemption as and when she cannot attend the Court ,if at all,

her presence is required. He has further submitted that

grandparents are there to look after the child aged 10 years,

and therefore, it is not that she cannot travel to attend the case

at Vadodara.

3.2 He has further submitted that, as reflected from the

affidavit-in-reply, she has travelled all alone to foreign countries

and for that her passport may also be looked into, which is not

denied by the applicant - wife. Therefore, it is submitted that if

she can travel foreign countries all alone and there is no

inconvenience to travel within India, that too, only 300 kms one

way.

3.3 He has further submitted that the husband is ready

to bear all the possible expenses for attending the Court at

Vadodara either for travelling or for stay at Vadodara, and

therefore, there is no reason to transfer a case from Vadodara

to Rajkot.

3.4 He has further submitted that her father, as

reflected in the affidavit-in-reply to which there is no rejoinder

filed, is a criminal offender and an FIR under Section 307 of the

Indian Penal Code and other relevant Sections has been filed

C/MCA/409/2022 ORDER DATED: 07/10/2022

against him and applicant herself always used to say that she

wants to be as far away from her father as possible. Therefore,

also there is no need to transfer the case from Vadodara to

Rajkot.

3.5 Mr. Abhisst K. Thaker, learned advocate for the

respondent - husband, relied on a decision in the case of

Gayatri Mohapatra v. Ashit Kumar Panda, reported in

(2003) 11 SCC 731, for a proposition that when pleadings

reflected that she has travelled from place to place for natal

family business, inconvenience to travel cannot be a ground

for transfer of a case.

3.6 Another decision of this Court in case of Deepika v.

Wing Commander Abhishek Singh Tanwar, reported in

2022 SCC OnLine Guj 40, more particularly para 6, 7 and 8

thereof, for the very same proposition as referred to in earlier

judgment, relying the case of Gayatri Mohapatra (supra) as also

Anindita Das v. Srijit Das, reported in (2006) 09 SCC 197,

for a proposition that the leniency shown to the wife for transfer

of a case has been misused, and therefore, case should not be

transferred from one State to another.

Relying on both these decisions, it is submitted that the

case is not required to be transferred from Vadodara to Rajkot.

       C/MCA/409/2022                             ORDER DATED: 07/10/2022




4.             Having   heard   the    learned   advocates          for      the

appearing parties as also going through the material produced

on record along with the affidavit-in-reply filed by the

respondent - husband, it appears that there are at least two

proceedings filed at Rajkot, whereas present suit is sought to

be transferred from Vadodara to Rajkot. Respondent - husband

is attending both the cases at Rajkot as custody proceedings

filed by him at Rajkot because of the territorial jurisdiction and

maintenance proceedings also. As such, it would be in the

interest of the husband that all the proceedings are attended to

at one place instead of attending different proceedings at

different places, that too, on different dates. It would be on the

contrary in the interest of the husband that he is supposed to

attend all the three cases on one day at one place alone

instead of different proceedings on different dates and different

places.

4.1 Coming to the hardship or inconvenience to travel

merely because applicant - wife has travelled alone to foreign

countries, would not be a criteria to refuse transfer of a case on

the ground of inconvenience. Though the wife has engaged an

advocate at Vadodara, she needs to either attend the Court on

the day required or instruct her advocate and chalk out the

C/MCA/409/2022 ORDER DATED: 07/10/2022

defences available in accordance with law and for that, there

may be a frequent visit at Vadodara if the advocate is engaged

from Vadodara. At any rate, merely because she has travelled

alone to foreign countries reflecting from her passport, as

asserted in the reply, which is not answered by the applicant -

wife, is no ground to refuse transfer of a case from Vadodara to

Rajkot.

4.2 Another ground pleaded by the respondent -

husband that the grandparents can look after the child, is again

not a criteria, when child is of a tender age of 10 years and

studying in school and leaving him for at least two days for

attending the Court on a given date for an hour or two, would

be most inconvenient, and therefore, that ground is also not a

valid ground put forth by the respondent - husband objecting to

the transfer of a case.

4.3 Another ground pleaded by the respondent -

husband that he is ready to bear the cost of travelling and stay

of the applicant - wife at Vadodara, as and when she is required

to attend the Court, is also not valid as he may not show that

grace to the wife and instead, he may spend that amount for

himself attending Court at Rajkot instead of bearing the cost on

behalf of the wife.

       C/MCA/409/2022                            ORDER DATED: 07/10/2022




4.4            Looking at the decisions cited by both the sides, it is

clear that inconvenience or hardship to the wife is the

consideration for a transfer of a case. Even refusal of a transfer

of a case from one State to another, as cited by the learned

advocate for the respondent - husband in the case of Gayatri

Mohapatra (supra) is on its own facts as she was a working

women and in connection with her natal family business, she

travelled a lot all around. In that peculiar facts, Supreme Court

determined the said case, and therefore, it cannot be pressed

into service, objecting to the transfer of a case.

4.5 Another decision in the case of Deepika (supra)

referring to other Supreme Court decisions, including Gayatri

Mohapatra (supra) and Anindita Das (supra), are referred to in

the said decision and Anindita's case was on peculiar facts

contained therein, where Supreme Court was considering the

misuse by the wife of a liberty granted to them in transferring

cases interstates and in that peculiar circumstances, Supreme

Court had ordered refusing to transfer the case. However, each

case has to be considered on its own merit and no straight

jacket formula can be determined either to grant or for refusal

of transfer of a case from one place to another.

C/MCA/409/2022 ORDER DATED: 07/10/2022

5. Having overall view of the circumstances and the

case pleaded, I deem it fit to transfer the Family Suit No. 1216

of 2021 pending in the Family Court, Vadodara to the Family

Court at Rajkot.

In view thereof, this application is allowed. The

aforesaid Family Suit No. 1216 of 2021 is ordered to be

transferred from the Family Court, Vadodara to the Family

Court at Rajkot.

(UMESH A. TRIVEDI, J.) Raj