Jagrutiben W/O Hareshbhai ... vs Hareshbhai Lakhmanbhai Sodagar
2023 Latest Caselaw 6571 Guj

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     C/MCA/646/2023                             ORDER DATED: 08/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 646 of 2023
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       JAGRUTIBEN W/O HARESHBHAI LAKHMANBHAI SODAGAR
                           Versus
              HARESHBHAI LAKHMANBHAI SODAGAR
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Appearance:
MR. BHARGAV K MEHTA(7094) for the petitioners(s) No. 1,2
MR.PRASHANT B SHARMA(7028) for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                           Date : 08/09/2023

                             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. 1430 of 2022 pending before the learned Family Court, Ahmedabad to learned competent court at Una inter alia on the ground of convenience.

2. It is the case of the petitioner No.2 that she resides at Una and got married with the opponent - husband as per Hindu rites and rituals, whereas the opponent husband has preferred Family Suit No.1430 of 2022 in the Court at Ahmedabad under section 13(1) of the Hindu Marriage Act inter alia praying for a decree of restitution of conjugal rights. It is the case of the petitioners that it will not be possible for the petitioner No.2 to travel along with her minor son Dharmesh and it would be physical and mental harassment to them to travel on each adjournment from Una to Ahmedabad.

3. In background of above facts, the respondent has filed

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Family Suit No.1430 of 2022 under section 13(1) 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.1430 of 2022 from learned Family Court, Ahmedabad to learned competent court at Una inter-alia on the ground that she is facing difficulty to attend proceedings at Family Court, Ahmedabad, as she has to travel 360 kms. from Una to Ahmedabad along with her minor son.

5. Heard learned advocate Mr. Bhargav Mehta for the petitioners and learned advocate Mr. Prashant Sharma for the respondent.

6. Learned advocate Mr. Bhargav Mehta would submit that the respondent is irregular in paying the maintenance amount and the respondent has begotten the minor child out of the marriage and it is very difficult for the petitioners to attend the proceedings at Ahmedabad and even she cannot bear the travelling expenses and all that aspects would lead the petitioners to remain without contesting the suit at Ahmedabad. Learned advocate Mr. Mehta has tendered affidavit-in-rejoinder, which is taken on record. Upon such submission, he prays to allow this petition. In the affidavit-in-reply of the respondent, in para 2, he has mentioned following:-

"Deponent say and submits that the deponent is doing the tailoring work by profession and was residing at village Gadhhadha, Tal: Gir Somnath address

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mentioned in the cause title of the affidavit an presntly is residing at Ahmedabad."

7. On the other hand, learned advocate Mr. Prashant Sharma for the respondent would submit that the respondent is doing labour work as a tailor and for his work, he has to frequently travel from Ahmedabad to Surat. In that circumstances, it is difficult for him to attend the proceedings, if transferred at the place where the petitioners are residing. Thus, he submits to dismiss the petition.

8. 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 Una along her parents at parental home. She is keeping minor son aged 05 years with her. It is also submitted that all other proceedings arising out of dispute between the parties are pending at different Courts at Una but Family Suit is pending at Family Court, Ahmedabad.

9. Learned advocate for the petitioner would submit that Una is 360 kms apart from Ahmedabad. On every date, the petitioner has to come from Una 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 competent court at Una, the petitioner shall not seek expenses for transportation she had borne for attending the proceedings. Upon such submissions, he requested to allow the

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petition.

10. 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 Una to Ahmedabad is quite difficult as both cities apart 360 kms. It is difficult for the lady to attend proceedings at Family Court, Ahmedabad. One may also keep in mind that son is 5 years old. Thus, inconvenience which is pinpointed in the petition can be visualized and could be given importance as well.

11. 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.1430 of 2022 pending at learned Family Court, Ahmedabad is hereby transferred to competent court at Una for disposal in accordance with law.

Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE