Gujarat High Court
Alpaben W/O Himanshubhai Trivedi ... vs Himanshubhai Rameshbhai Trivedi on 25 August, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/MCA/1216/2023 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1216 of 2023
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ALPABEN W/O HIMANSHUBHAI TRIVEDI D/O PRAVINBHAI TRIVEDI
Versus
HIMANSHUBHAI RAMESHBHAI TRIVEDI
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Appearance:
MR BHUNESH C RUPERA(3896) for the petitioner(s) No. 1
MR HARNISH V DARJI(3705) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/08/2023
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. 45 of 2021 pending before the learned Family Court ,
Palanpur to learned Family Court , Surendranagar inter alia on
the ground of convenience.
2. Brief facts of the case are as under:-
2.1 The marriage of the petitioner was solemnized on
11.02.2000, as per the their caste and custom. Initially, the
marriage life between both husband and wife has gone smooth
and on 19.10.2002, the wife gave the birth to one girl child viz.,
Diti. Thereafter, on 11.09.2006, the wife gave birth to another
girl child viz., Era. On being birth of two girl babies, the in-laws
started harassing the wife by giving mental and physical
harassment and torture. The wife used to tolerate all these
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things, as she does not want to spoil the marriage life as looking
to the future of her two daughters but there is no change in the
behavior of the husband and in laws, thereafter suddenly on
02.11.2016 the husband deserted wife and driven out of wife
from her matrimonial home, thereafter also, the wife did not file
any suit or avail any legal action as to save her matrimonial life
for some period as the both the daughters are residing with her
in-laws house. The husband has not taken care of daily need /
maintenance for survival of wife, so as a last resort, the wife filed
an application under Section 125 of the Code of Criminal
Procedure, in which, she has prayed for Rs.35,000/- p.m.
towards maintenance and Rs.20,000/- for the costs by filing an
application being Criminal Misc. Application No.157 of 2021,
before Ld. Family Court , Surendranagar, which was partly
allowed judgment and order dated 31.12.2022 passed by the
learned Principal Judge, Family Court , Surendranagar and
awarded the lesser amount towards the maintenance of
Rs.6,000/- per month being aggrieved and dissatisfied with said
order present petitioner prefer Criminal Revision Application
No406 of 2023 before this Hon'ble Court in which this Hon'ble
Court issued Notice and now same is pending for hearing.
2.2 Thereafter, the husband on 18.08.2021, filed a suit for
restitution of conjugal rights under Section 9 of the Hindu
Marriage Act, 1955 before the Family Court , Banaskantha at
Palanpur being Family Suit No.45 of 2021, wherein initially a
notice was issued to the wife and served but due to some reason
wife has not appeared before the Family Court , Panlapur so the
matter was proceeded ex parte and learned Principal Judge,
Family Court, Palanpur, Dist- Banaskantha vide order dated
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C/MCA/1216/2023 ORDER DATED: 25/08/2023
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26.05.2022 allowed the suit filed by the husband and defendant
wife is directed to accompany the husband and to restore the
conjugal rights of the marriage within a period of three months
from the date of decree under Section 9 of the Hindu Marriage
Act.
2.3 Being aggrieved and dissatisfied with the impugned order
dated 26.05.2022, the petitioner wife preferred the First Appeal
before this Hon'ble Court under Section 96 of the Code of Civil
Procedure, 1908 being First Appeal No.3147 of 2022. The
Division Bench of this Hon'ble Court vide order dated
14.06.2023 allowed the First Appeal filed by the wife and
quashed and set aside the impugned order dated 26.05.2022
passed by the learned Principal Judge, Family Court,
Banaskantha at Palanpur in Family Suit No.45 of 2021 and
directed to decide the fresh in accordance of law on the basis of
the prevalent material record and after extending full
opportunity to both the sides.
2.4 Since this Hon'ble Court has already remanded back the
matter and directed the Family Court to decide the same afresh
in accordance with law. Thereafter, the learned Family Court,
Palanpur issued notice to the petitioner making returnable on
14.08.2023. The petitioner is a lady and having many hardship
while travelling from Surendranagar to Palanpur for attending
each and every day of the proceedings, therefore, it was prayed
that this Hon'ble Court may transfer the suit being Family Suit
No.45 of 2021 from the Court of Family Court , Banaskantha at
Palanpur to the Family Court , Surendranagar.
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3. 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.45 of 2021 from learned Family Court ,
Palanpur to learned Family Court , Surendranagar inter-alia on
the ground that she is facing difficulty to attend proceedings at
Family Court , Palanpur, as she has to travel 211 km. from
Surendranagar to Palanpur along with her minor son.
4. Heard learned advocate Mr. BC Rupera for the petitioner
and learned advocate Mr. Harnish Darji for the respondent.
5. 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 leaving in village Wadhwan, Dist: Surendranagar
along with her parents at parental home. He would further
submit that the brother of the petitioner is mentally challenged
person and in that circumstances, the responsibility of the old
aged father is lying with the petitioner. He would further submit
that the petitioner, in these circumstances, could not remain
present before the Family Court, Palanpur at earlier occasion
and because of that, the proceedings took place against the
petitioner and the learned Family Judge, Palanpur vide order
dated 26.5.2022, passed an order allowing the suit as it remains
without contest, but later on, the suit is restored in view of the
judgment passed by this court in First Appeal No.3147 of 2022.
Learned advocate Mr. Rupera, in these circumstances, submits
that attending the proceedings at Family Court Palanpur is not
possible for the petitioner, because long distance of 211KM
exists between the residence of the petitioner and the Family
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Court at Palanpur. In these circumstances, he would submit
that end of justice would be met, if the petition is transferred to
Family Court, Surendranagar.
6. Contesting the petition, learned advocate Mr. Harnish Darji
appearing for the respondent would submit that the petitioner
has suppressed the material facts that one of his brother is living
in Ahmedabad and he could take care of the old aged father of
the petitioner. He would further submit that the petitioner has
left the matrimonial home leaving behind two daughters, which
are living with the father - respondent. She did not take care of
her two daughters and in that circumstances, the present
petition may not be allowed. He would further submit that at
present in the Surendranagar district, no proceeding is pending
between the parties, the present petitioner has not filed any
other petition in the Surendranagar district. So rule of
convenience would not apply in the present case. In background
of this argument, learned advocate Mr Darji submits to dismiss
this petition.
7. Travelling to far distance of 200 km and to attend the
proceedings on each date could be rendered onerous on the
petitioner and it would be against the principles of expedient for
end of justice. To be observed that the petitioner is alone. She
has no male member to accompany her and to reach at Palanpur
from Surendranagar. Therefore, to meet with the end of justice,
it is expedient to transfer the family suit from Family Court ,
Palanpur to the Family Court , Surendranagar. Reference can
be made to some of the judgments.
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1. Mona Aresh Goel Vs. Aresh Satya Goel, 2000(9) SCC 255
2. Lalita A. Ranga Vs. Ajay Champalal Ranga, 2000(9) SCC
3. Anju Ohri Vs. Varinder Ohri, 2000(7) SCC 556
8.1. In view of the above reason, the contention raised by
learned advocate Mr. Darji would not survive.
8. 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
Surendranagar to Palanpur is quite difficult as both cities are
apart 211 km. It is difficult for the lady to attend proceedings at
Family Court, Palanpur. Thus, inconvenience which is
pinpointed in the petition can be visualized and could be given
importance as well.
9. 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.45 of 2021
pending at learned Family Court , Palanpur is hereby transferred
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to Family Court , Surendranagar for disposal in accordance with
law.
Direct service is permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
