Gujarat High Court
Naliniben W/O Mahendrakumar ... vs Mahendrakumar Dahyabhai Patel on 22 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/MCA/700/2023 ORDER DATED: 22/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 700 of 2023
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NALINIBEN W/O MAHENDRAKUMAR PATEL
Versus
MAHENDRAKUMAR DAHYABHAI PATEL
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Appearance:
MR GAURAVKUMAR K BAROT(12171) for the Applicant(s) No. 1
MR YASH K DAVE(10269) for the Applicant(s) No. 1
NOTICE SERVED for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/08/2023
ORAL ORDER
1. In this petition filed under section 24 of the Code of Civil
Procedure, 1908, the petitioner has prayed to transfer Family
Suit No.51 of 2022 pending before the learned Senior Civil
Judge, Ankleshwar to learned Family Court, Vadodara inter alia
on the ground of convenience.
2. The applicant is wife of opponent whose marriage was
solemnized on 15/05/1989 at Ankleshwar and out of the said
wedlock, the applicant and opponent is having two children
which includes one daughter who also got married and one son
who is at present 24 years. It appears from the record that some
dispute between the parties took places wherein though efforts
were made; but remained unsuccessful. It is also submitted by
applicant that applicant has initiated proceedings under
Sections 125 of the Cr.PC for maintenance at Vadodara and
other proceedings also came to be initiated at Vadodara Court.
NEUTRAL CITATION
C/MCA/700/2023 ORDER DATED: 22/08/2023
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3. In background of above facts, the respondent has filed
Family Suit No.51 of 2022 under section 13 of the Hindu
Marriage Act, 1955 for dissolution of their marriage before the
learned Senior Civil Judge, Ankleshwar.
4. In view of above, the petitioner has approached this Court
under section 24 of the Code of Civil Procedure seeking relief to
transfer Family Suit No.51 of 2022 from learned Senior Civil
Judge, Ankleshwar to learned Family Court, Vadodara inter-alia
on the ground that she is facing difficulty to attend proceedings
at Court of Ankleshwar, as she has to travel 89 kms. from
Vadodara to Ankleshwar as she does not have any source of
income and she is to spend extra money.
5. Heard learned advocate for the petitioner.
6. The party-in-person-respondent has filed affidavit
objecting the relief for transfer of the family suit and raised
contentions that such petition is filed to harass the respondent.
However, on perusal of the affidavit, none of the contentions
raised in the affidavit can brush aside the rule of convenience
runs in favour of the petitioner. Thus, the contentions raised in
affidavit will not debar the petitioner from getting the relief.
7. Pressing into service judgment in the case of Tejalben v/s.
Mihirbhai Bharatbhai Kothari [AIR 2016 SC 718], it is sought to
be submitted by learned advocate for the petitioner that the
petitioner is lady living in Vadodara along her son. She is having
no source of income as stated by her in the application. It is also
submitted that all other proceedings arising out of dispute
NEUTRAL CITATION
C/MCA/700/2023 ORDER DATED: 22/08/2023
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between the parties are pending at different Courts at Vadodara
but Family Suit is pending at Family Court, Ankleshwar.
8. Learned advocate for the petitioner would submit that
Ankleshwar is 89 kms apart from Vadodara. On every date, the
petitioner has to come from Vadodara to Ankleshwar, which is
quite inconvenience for the petitioner to attend the proceedings
every time. Therefore, he would submit that the petitioner is
urging to transfer Family Suit only on the ground of
inconvenience she is facing. Learned advocate for the petitioner
would further submit that in case Family Suit is transferred
from Ankleshwar to Vadodara, the petitioner shall not seek
expenses for transportation she had borne for attending the
proceedings. Upon such submissions, he requested to allow the
petition.
9. In the case of Sumita Singh v/s. Kumar Sanjay [AIR 2002
SC 396], the Apex Court has observed that wife's inconveniency
must be given due importance while deciding transfer petition.
It is to be noted that power under section 24 of the CPC is
discretionary power. The Court may or may not exercise
discretion. However, when such discretion is to be exercised it
must be guided by settled principle of law. To be noted that the
petitioner has sought relief only on the ground of inconvenience.
Fairness of judicial proceedings is not questioned. No allegations
of bias in the proceedings is levelled against Judicial Officers.
Thus convenience as stated earlier must be considered more
particularly in background of the fact that travelling from
Ankleshwar to Vadodara is quite difficult as both cities apart 89
kms. It is difficult for the lady to attend proceedings at Family
NEUTRAL CITATION
C/MCA/700/2023 ORDER DATED: 22/08/2023
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Court, Ankleshwar. One may also keep in mind that petitioner is
having no source of income and residing with her son. Thus,
inconvenience which is pinpointed in the petition can be
visualized and could be given importance as well.
10. In view of above peculiar facts and circumstances and for
the foregoing reasons, this petition deserves consideration.
Accordingly, the petition is allowed. Family Suit No.51 of 2022
pending before the learned Senior Civil Judge, Ankleshwar to
learned Family Court, Vadodara for disposal in accordance with
law.
Direct service is permitted.
(J. C. DOSHI,J)
sompura
