Gujarat High Court
Dhruvatiben D/O Babubhai Solanki W/O ... vs Dhaval Lalitkumar Makwana on 17 January, 2025
NEUTRAL CITATION
C/MCA/2549/2024 ORDER DATED: 17/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR TRANSFER) NO. 2549 of 2024
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DHRUVATIBEN D/O BABUBHAI SOLANKI W/O DHAVALKUMAR
LALITBHAI MAKWANA
Versus
DHAVAL LALITKUMAR MAKWANA
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Appearance:
MS DIPMALA S DESAI(6596) for the Applicant(s) No. 1
DHRUVIK K PATEL(7769) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/01/2025
ORAL ORDER
1. Rule. learned advocate Mr. Dhruvik Patel waives service
of notice of rule on behalf of the respondent-opponent.
2. Heard learned advocate Ms. Dipmala S. Desai for the
applicant and learned advocate Mr. Dhruvik K. Patel for the
opponent.
3. The present application is filed under Section 24 of the
Civil Procedure Code, 1908 seeking transfer of Family Suit of
140 of 2024 filed by the opponent- husband at Jamnagar to
the Competent Court at Amreli, where the applicant is
residing.
Submission of learned advocate for the applicant
4. Learned advocate Ms. Dipmala Desai for the applicant
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would submit that due to disharmony between the couple,
they have separated and the present applicant is residing at
Amreli with her elder sister alongwith her 9 years old
daughter namely Jenisha, who born out of the wedlock. She
would submit that the distance between Amreli to Jamnagar
is about 198 km. and it would be caused more inconvenience
to the applicant lady to travel alone with her minor child
from Amreli to Jamnagar to attend the proceedings of
Family Suit instituted by the opponent-husband.
4.1 She would further submit that prior to filing of the
Family Suit by the opponent, the applicant has filed an
application seeking maintenance under Section 125 of the
Code of Civil Procedure, which was allowed by the Principal
Judge, Family Court, Amreli vide order dated 24.05.2023
whereby granted maintenance in favour of the applicant as
well as her daughter.
4.2 She would further submit that a complaint being
Criminal Misc. Application No. 129 of 2023 is also filed by the
applicant under the provisions of the Protection of Women
from Domestic Violence Act, 2005 before the Chief Judicial
Magistrate, Amreli which is pending against the opponent
and other family members. Likewise, an FIR came to be
registered by the applicant against the opponent and his
family members under Section 498(A) of IPC. All these
proceedings are pending against the opponent before the
Court concerned at Amreli, wherein being an accused, the
opponent is required to mark his presence and to attend the
proceedings.
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4.3 Learned advocate for the applicant further would
submit that it would not be inconvenient for the opponent
to appear in the Family Court at Amreli, if the Family Suit
sought to be transferred, if transferred by this Court at
Family Court at Amreli. Lastly, she would submit that
considering the fact that the applicant is working as a
teacher in a school and having responsibility to look after her
minor daughter aged about 9 years, if the Family Suit in
question be transferred from Jamnagar to Amreli as prayed
for, it would facilitate the parties to appear before the Court
concerned on the same day, if the joint request made by the
parties. To buttress her argument, she would rely upon the
judgment of the Hon'ble Supreme Court in the case of
'Rajani Kishore Pardeshi Vs. Kishor Babulal Pardeshi'
reported in (2005) 12 SCC 237.
Submission of learned advocate for the opponent.
5. Per contra, learned advocate Mr. Dhruvik Patel for the
opponent has vehemently opposed the prayer made in the
present application, whereby he has drawn attention of this
Court that detail reply is filed by the opponent in support of
his submission.
5.1 He would submit that merely because the applicant is a
lad, is no ground to transfer the proceedings from Jamnagar
to Amreli as prayed for. He would further submit that there
would not be any inconvenience caused to the applicant to
reach Family Court at Jamnagar because she is literate lady
and can manage herself to travel alone from Amreli to
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Jamnagar.
5.2 Learned advocate for the opponent would further
submit that the opponent is regularly paying the
maintenance amount as directed by the Court concerned,
which would be a factor against her not to come to attend
the proceedings at Family Court at Jamnagar. He would
further submit that this Court has been kind enough to stay
the proceedings qua family members of the opponent in
relation to the criminal complaints filed by the applicant
under the provisions of the Domestic Violence Act as well as
under IPC, in view of the aforesaid aspect, he would request
this Court not to grant any relief in favour of the applicant.
5.3 Nonetheless, he would request this Court, if this Court
inclined to accept the prayer made by the applicant in this
application and the Family Suit instituted by the opponent is
to be transferred to Family Court Amreli, then the applicant
may be directed to jointly request with the opponent to the
Court concerned to grant one common date thereby the
opponent can attend all the proceedings which are either
instituted by the applicant against the opponent as well as
Family Suit which may be transferred to the Family Court
concerned at Amreli and no other and further submissions
made by the learned advocate for the opponent.
Conclusion.
6. There is no dispute between the parties that the
distance between Amreli to Jamnagar is about 198 km one
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way. The applicant is living with her minor daughter aged
about 9 yrs. at her elder sister's house, the applicant is
teaching in a Primary school, whereas, the opponent is
serving in a private company.
6.1 It is also not in dispute that there are criminal
complaints already instituted by the applicant under the
Domestic Violence Act as well as Indian Penal Code, which
are pending before the Court concerned at Amreli, wherein
at least the opponent requires to attend the proceedings
being principal accused because reliefs which are granted by
this Court is in favour of the other family members of the
opponent.
6.2 Keeping all this factor into account, specially
considering the distance between Jamnagar to Amreli is
about 198 km at one way. According to this Court, the entire
day is required to be spent by the applicant to go from her
place to Jamnagar. It is also made known to this Court that
the parents of the applicant died in Covid-19. The applicant
takes care of her minor child aged about 9 years by herself, is
also one of the crucial factor requires to be taken note of
while adjudicating the present application. This Court is
required to adjourn inconvenience caused to the parties and
the parties who will face more inconvenience to attend the
proceedings, specially family dispute needs more attention.
6.3 At this stage, it is profitable to rely upon the ratio of
the decision of the Hon'ble Supreme Court in the case of
'Sumita Singh v/s. Kumar Sanjay and Anr.' reported in AIR
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2002 SC 396, which reads thus :-
"1. This is a transfer petition filed by the wife. She seeks the
transfer of matrimonial proceedings filed by the husband against her in
Ara, Bhojpur to Delhi. It is her case that she is now living and working
in Delhi and that she would be unable to travel up and down from Delhi
to Ara, a distance of about 1100 Kilometers from Delhi, to defend the
matrimonial proceedings. She also states that she has no one with
whom she can stay in Ara because her parents are residents of
Gurgaon.
2. Learned counsel for the husband states that the wife is an
educated woman who is doing very well and can, therefore, travel to
Ara while the husband is unemployed.
3. It is the husband's suit against the wife. It is the wife's
convenience that, therefore, must be looked at, The circumstances
indicated above are sufficient to make the transfer petition absolute.
4. Accordingly, Matrimonial Case No. 30 of 2000 pending before
the VIth Additional District and Sessions Judge, Ara, Bhojpur, Bihar
shall stand transferred to the District Judge, Delhi, who shall hear it
himself or assign it for hearing to an appropriate forum.
5. No order as to costs."
6.4 Thus, keeping in mind, the aforesaid facts and the law
laid down by the Hon'ble Supreme Court in the case of
Sumita Singh(supra) and there are already two criminal
complaints instituted by the applicant, which are pending
against the opponent at Amreli Court, wherein the opponent
is required to attend, there would not be inconvenience
caused to the opponent to attend his own family suit, if it
will be transferred from Family Court, Jamnagar to Family
Court, Amreli.
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6.5 So, in view of the aforesaid fact, I am inclined to grant
the prayer made in the present application. The Family Suit
No. 140 of 2024 instituted by the opponent which is pending
before the Family Court, Jamnagar is ordered to be
transferred from Family Court, Jamnagar to Family Court,
Amreli.
6.6 Once the Family Suit No. 140 of 2024 will be received
by the Family Court, Amreli, it may be given new number by
the Family Court concerned and the respective parties may
be indicated about its registration and the next date of
hearing.
6.7 It is open for the opponent to request the Court
concerned at Amreli including Family Court at Amreli to give
a common date in all the three proceedings i.e. two criminal
complaints plus family suit instituted by the opponent,
thereby the opponent can attend all three proceedings on
one day. If such a prayer will be made by the opponent to the
Court concerned, learned advocate Ms. Dipmala Desai
appearing for the applicant assures this Court that her client
will not object such prayer made by the opponent.
6.8 It goes without saying that if such a prayer will be made
by the parties to the Court concerned, it requires to consider
such request made by the parties, thereby time of individuals
can be saved from attending Court proceedings on different
dates.
6.9 With the aforesaid discussions, reasons and directions,
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the present application is allowed to the aforesaid extent.
Rule is made absolute. No order as to costs.
(MAULIK J.SHELAT,J)
SALIM/
