Gujarat High Court
Gunjan Shantilal Lakhani vs Jay Dipakbhai Mehta on 2 September, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/MCA/696/2022 ORDER DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 696 of 2022
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GUNJAN SHANTILAL LAKHANI
Versus
JAY DIPAKBHAI MEHTA
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Appearance:
MR DIGANT B KAKKAD(6523) for the Applicant(s) No. 1
MR ABHISHEK M MEHTA(3469) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/09/2023
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. 575 of 2022 pending before the learned Family Court,
Ahmedabad to learned Family Court, Porbandar inter alia on the
ground of convenience.
2. That on 30.11.2017 she got married to the respondent
herein residing in Ahmedabad. However, after constant physical
and mental torture by the respondent and his family members,
she was thrown from her matrimonial house along with her son
on 18.03.2022 and was threatened to never return back from
her parental house. Matrimonial discord between the party has
given rise to multiple litigation. One of such litigation is filed by
the husband before the Family Court for restitution of conjugal
rights. The petitioner is a lady aged about 34 years and at
present residing with her old aged parents and it is extremely
NEUTRAL CITATION
C/MCA/696/2022 ORDER DATED: 02/09/2023
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difficult for her to go from Porbandar to Ahmedabad. Hence, this
petition for transfer.
3. To be noted that the respondent has filed Family Suit
No.575 of 2022 under section 9 of the Hindu Marriage Act, 1955
for restitution of conjugal rights before the learned Family
Court, Ahmedabad .
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.575 of 2022 from learned Family Court,
Ahmedabad to learned Family Court, Porbandar inter-alia on the
ground that she is facing difficulty to attend proceedings at
Family Court, Ahmedabad, as she has to travel 388 km. from
Porbandar to Ahmedabad along with her minor son.
5. Learned advocate Mr. Digant Kakkad for the petitioner
submits that the applicant is suffering from the disease "hyper
glycaemic seizure" and "post partom thrombosis". He would
further submit that the distance between Porbandar and
Ahmedabad is 388 km and it is very difficult for the applicant to
attend the proceedings at every adjourned date from Porbandar
to Ahmedabad, more particularly, there is no male member with
the petitioner herein. He would further submit that other
proceeding filed under the provisions of the Domestic Violence
Act is pending at Porbandar and therefore, also present
proceeding be transferred to Porbandar. Upon such submission,
he prays to allow this petition.
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C/MCA/696/2022 ORDER DATED: 02/09/2023
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6. 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 Porbandar along her parents at
parental home. She is keeping minor son aged 03 years with
her. It is also submitted that all other proceedings arising out of
dispute between the parties are pending at different Courts at
Porbandar but Family Suit is pending at Family Court,
Ahmedabad.
7. Learned advocate for the petitioner would submit that
Porbandar is 388 km apart from Ahmedabad. On every date, the
petitioner has to come from Porbandar to Ahmedabad, 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 Family Court, Ahmedabad to Family Court, Porbandar, the
petitioner shall not seek expenses for transportation she had
borne for attending the proceedings. Upon such submissions, he
requested to allow the petition.
8. On the other hand, while opposing the relief claimed of
transfer of the family suit, learned advocate Mr. Abhishek Mehta
for the respondent would submit that no grounds are averred in
the petition, which may assist the petitioner for getting the relief.
He would further submit that in proceedings under the
provisions of the Domestic Violence Act, the petitioner has not
submitted that she is suffering from some ailment nor any
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medical reports are produced onr ecord of this petition. Thus,
on the ground that the petitioner is suffering from the physical
ailment, the discretion u/s 24 of the CPC cannot be exercised.
He would further submit that prior to disputes arose between
the parties, both of them were residing together at Ahmedabad.
The petitioner having maternal home at Porbandar was freely
and with convenience was travelling from Porbandar to
Ahmedabad, which is 400 km away from Ahmedabad. He would
further submit that so far as complaint filed by the petitioner u/
s 498A of the IPC, it is not proceeded further on account of
interim arrangement recorded by this Court in quashing
petition. He would further submit that the respondent's
convenience is also required to be seen while exercising
discretion u/s 24 of the CPC. He would further submit that at
present, the respondent is living in Udaipur to do his earning
work. Thus, he would submit that overall circumstances does
not favour the petitioner to apply rule of convenience in her
favour. Learned advocate Mr. Mehta has relied upon judgment
of this Court in case of Deepika Vs. Abhishek Singh Tanwar
reported in MANU/GJ/1586/2022.
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
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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
Porbandar to Ahmedabad is quite difficult as both cities apart
388 km. It is difficult for the lady to attend proceedings at Family
Court, Ahmedabad. One may also keep in mind that son is of
infant age. Thus, inconvenience which is pinpointed in the
petition can be visualized and could be given importance as well.
Insofar as the judgment of this Court in case of Deepika (supra)
relied upon by the learned advocate for the respondent, it does
not apply to the case on hand on the ground that in that case,
the petitioner was practising as a Dentist and was not facing
difficulty to travel the distance. This Court considering such
aspect, declined to exercise discretionary jurisdiction u/s 24 of
the CPC. Thus, this judgment is not rendering any assistance to
the case of the respondent.
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.575 of 2022
pending at learned Family Court, Ahmedabad is hereby
transferred to Family Court, Porbandar for disposal in
accordance with law.
Direct service is permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
