Gujarat High Court
Simaben Rameshchandra Muljibhai ... vs Ajay Gurumukhdas Bhagchandani on 5 September, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
C/MCA/1198/2023 ORDER DATED: 05/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1198 of 2023
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SIMABEN RAMESHCHANDRA MULJIBHAI PARVANINI
Versus
AJAY GURUMUKHDAS BHAGCHANDANI
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Appearance:
MR TUSHAR CHAUDHARY(5316) 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 : 05/09/2023
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. 437 of 2023 pending before the learned Family Court,
Ahmedabad to learned Chief Judicial Magistrate First Class at
Visnagar, Dist. Mehsana inter alia on the ground of
convenience.
2. The brief facts of this case are as under:-
2.1 That, the applicant got married with the respondent in
the year 2012 and from their wedlock, she is having one
daughter aged about 8 years who is residing with the present
applicant. That, the applicant was deserted from her
matrimonial home by the respondent and in-laws in the year
2018 and thereafter, the applicant being a wife started resided
at her parental house. That, the applicant was not doing any
job or service and she was having no any income instrument.
NEUTRAL CITATION
C/MCA/1198/2023 ORDER DATED: 05/09/2023
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Therefore, she had filed an application on 21.10.2022 being
Criminal Misc. Application No. 322 of 2022 under Section 125
of the Code of Criminal Procedure, 1973 before the learned
Chief Judicial Magistrate First Class at Visnagar, Dist. Mehsana
for getting maintenance. Thereafter, respondent-husband had
filed the proceedings bearing Family Suit No. 437 of 2023
under Section 9 of the Hindu Marriage Act before the Family
Court at Ahmedabad. That, the applicant being a wife is facing
a lot of hardships to travel from Visnagar to the learned Family
Court at Ahmedabad which is almost more than 80 k.m. away
from the resident of the applicant.
3. In background of above facts, the respondent has filed
Family Suit No.437 of 2023 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.437 of 2023 from learned Family
Court, Ahmedabad to learned Chief Judicial Magistrate First
Class at Visnagar inter-alia on the ground that she is facing
difficulty to attend proceedings at Family Court, Ahmedabad as
she has to travel 80 kms. from Visnagar to Ahmedabad along
with her minor daughter.
5. Heard learned advocate Mr. Tushar Chaudhary for the
petitioner. Though served, none remain present for the other
side. No objection has been raised by other side.
NEUTRAL CITATION
C/MCA/1198/2023 ORDER DATED: 05/09/2023
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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 Visnagar along her parents
at parental home. She is keeping minor daughter aged 8 years
with her. It is also submitted that all other proceedings arising
out of dispute between the parties are pending at different
Courts at Visnagar at Mehsana but, Family Suit is pending at
Family Court, Ahmedabad.
7. Learned advocate for the petitioner would submit that
Visnagar is 80 kms apart from Ahmedabad. On every date, the
petitioner has to come from Visnagar 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 the learned Chief
Judicial Magistrate First Class at Visnagar, Dist. Mehsana, 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. 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
NEUTRAL CITATION
C/MCA/1198/2023 ORDER DATED: 05/09/2023
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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 Visnagar to Ahmedabad is quite
difficult as both cities apart 80 kms. It is difficult for the lady to
attend proceedings at Family Court, Ahmedabad. One may also
keep in mind that daughter is 8 years old. 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.437 2023
pending at learned Family Court, Ahmedabad is hereby Cempa
transferred to the competent Court at Visnagar, Dist. Mehsana
for disposal in accordance with law.
Direct service is permitted.
(J. C. DOSHI,J)
BEENA SHAH
