Kaliben D/O. Jesangbhai Desai ... vs Rabari Dharamshibhai Harjibhai
2023 Latest Caselaw 6609 Guj

                                                                                 NEUTRAL CITATION




      C/MCA/1454/2023                             ORDER DATED: 08/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/MISC. CIVIL APPLICATION NO. 1454 of 2023

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     KALIBEN D/O. JESANGBHAI DESAI W/O. RABARI DHARAMSHIBHAI
                            HARJIBHAI
                              Versus
                  RABARI DHARAMSHIBHAI HARJIBHAI
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Appearance:
MR FB BRAHMBHATT(1016) for the Applicant(s) No. 1
UNSERVED REFUSED (N) 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 HMP Suit No.6 of 2023 pending before the learned Principal Senior Civil Judge, Prantij to learned competent court at Dehgam inter alia on the ground of convenience.

2. It is the case of the petitioner that she resides at Ahmedabad and got married with the opponent - husband as per Hindu rites and rituals, whereas the opponent husband has preferred HMP Suit No.6 of 2023 in the Court at Prantij under section 9 of the Hindu Marriage Act inter alia praying for a decree of restitution of conjugal rights. It is the case of the petitioner that it will not be possible for the petitioner to travel along with her five minor children, aged between 06 years and 15 years and it would be physical and mental harassment to them to travel on each adjournment from Dehgam to Prantij.

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C/MCA/1454/2023 ORDER DATED: 08/09/2023

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3. In background of above facts, the respondent has filed HMP Suit No.6 of 2023 under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the learned Principal Senior Civil Judge, Prantij .

4. In view of above, the petitioner has approached this Court under section 24 of the Code of Civil Procedure seeking relief to transfer HMP Suit No.6 of 2023 from learned Principal Senior Civil Judge, Prantij to learned competent court at Dehgam inter- alia on the ground that she is facing difficulty to attend proceedings at Principal Senior Civil Judge, Prantij, as she has to travel 64 km. from Ahmedabad to Prantij along with her minor son.

5. Heard learned advocate Mr. FB Brahmbhatt for the petitioner. He would submit that the petitioner is living at village Bhumasiya, Tal: Dehgam, which is 100 km away from Prantij and it is very difficult for the petitioner to travel from Bhumasiya to Prantij on every adjourned date.

5.1 Though the respondent is served, he did not have any respect of the process of the Court and refused the notice.

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 village Bhumasiya along her parents at parental home.

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C/MCA/1454/2023 ORDER DATED: 08/09/2023

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7. Learned advocate for the petitioner would submit that village Bhumasiya, Tal: Dehgam is 100 km apart from Prantij. On every date, the petitioner has to come from village Bhumasiya, Tal: Dehgam to Prantij, 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 Principal Senior Civil Judge, Prantij to competent court at Dehgam, 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 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 Ahmedabad to Prantij is quite difficult as both cities apart 64 km. It is difficult for the lady to attend proceedings at Principal Senior Civil Judge, Prantij. Thus, inconvenience which is pinpointed in the petition can be visualized and could be given

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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. HMP Suit No.6 of 2023 pending at learned Principal Senior Civil Judge, Prantij is hereby transferred to competent court at Dehgam for disposal in accordance with law.

Direct service is permitted.

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