Bhartiben W/O. Waghjibhai ... vs Waghjibhai S/O. Babubhai ...
2023 Latest Caselaw 6855 Guj

                                                                               NEUTRAL CITATION




     C/MCA/1453/2023                            ORDER DATED: 15/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 1453 of 2023

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                  BHARTIBEN W/O. WAGHJIBHAI PRAJAPATI
                                 Versus
                   WAGHJIBHAI S/O. BABUBHAI PRAJAPATI
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Appearance:
MR PREMDEEP V JADEJA(13939) 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 : 15/09/2023

                             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.15 of 2023 pending before the learned Family Court, Himmatnagar to learned Family Court, Ahmedabad on the ground of convenience.

2. It is the case of the petitioner that marriage between petitioner and respondent solemnized on 29.01.2007 and out of said wed-lock one son was borne who is aged 12 years. During the marriage span between the parties, some dispute and difference arose due to altercation. That on 20/04/2017, the opponent kicked out the applicant and her son. Dispute has given rise to application filed under section 125 of Cr.P.C. for maintenance being Misc. Application No.1490 of 2017 before the learned Family Court, Ahmedabad wherein maintenance of Rs.5000/- and Rs.3,000/- respectively to the applicant and her son was granted; however the respondent is not paying

NEUTRAL CITATION

C/MCA/1453/2023 ORDER DATED: 15/09/2023

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maintenance regularly and therefore recovery application is filed which is pending for adjudication.

3. In background of above facts, the respondent has filed Family Suit No.15 of 2023 under section 13(1) of the Hindu Marriage Act, 1955 for dissolution of the marriage.

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.15 of 2023 from learned Family Court, Himmatnagar to learned Family Court, Ahmedabad inter-alia on the ground that she is facing hardship as her son is studying and it is difficult for her to attend Court proceedings on every adjournment .

5. Heard learned advocate for the petitioner and respondent. Though served, none has appeared for the respondent.

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 Himmatnagar along her son. She is having son who is pursuing his study. Learned advocate for the petitioner would submit that it is difficult for the petitioner to attend the Court proceedings on every adjournment as her son is studying and distance between the tow cities are 70 Kilomters. On every date, the petitioner has to come from Himmagar 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

NEUTRAL CITATION

C/MCA/1453/2023 ORDER DATED: 15/09/2023

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ground of inconvenience she is facing. Learned advocate further submitted that in case Family Suit is transferred from Family Court, Himmatnagar to Family Court, Ahmedabad, the petitioner shall not seek expenses for transportation she had borne for attending the proceedings. Upon such submissions, he requested to allow the petition.

7. 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 Himmatnagar to Ahmedabad is quite difficult.

8. 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.15 of 2023 pending before the learned Family Court, Himmatnagar is hereby transferred to to learned Family Court, Ahmedabad for disposal in accordance with law. It is expected that the said suit shall be decided within two months from the date of the receipt of the writ of this order. Needless to say that observations made herein above shall not be influenced in any manner while deciding the

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C/MCA/1453/2023 ORDER DATED: 15/09/2023

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suit pending before the learned Court below.

(J. C. DOSHI,J) sompura