Gujarat High Court
Dipaliben W/O Laxmanbhai Javahrbhai ... vs Laxmanbhai Javaharbhai Lohar on 24 January, 2025
NEUTRAL CITATION
C/MCA/2053/2024 ORDER DATED: 24/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR TRANSFER) NO. 2053 of 2024
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DIPALIBEN W/O LAXMANBHAI JAVAHRBHAI LOHAR AND D/O
ASHOKBHAI PUNDLIK LOHAR
Versus
LAXMANBHAI JAVAHARBHAI LOHAR
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Appearance:
MS NEHA C SHUKLA(6172) for the Applicant(s) No. 1
MR DAXESH D BAROT(13149) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/01/2025
ORAL ORDER
1. Draft amendment filed by the learned advocate for the
applicant, is allowed. To be carried out forthwith.
2. Rule. learned advocate Mr. Daxesh D. Barot waives service
of notice of rule on behalf of the respondent-opponent.
3. Heard learned advocate Ms. Neha C. Shukla for the
applicant and learned advocate Mr. Daxesh D. Barot for the
opponent.
4. The present application is filed under Section 24 of the Civil
Procedure Code, 1908 seeking transfer of Family Suit No. 1352
of 2023 filed by the opponent- husband at Family Court, Surat to
the Family Court, Bhavnagar.
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C/MCA/2053/2024 ORDER DATED: 24/01/2025
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Submission of learned advocate for the applicant
5. Learned advocate Ms. Neha Shukla for the applicant would
submit that due to disharmony between the couple, they have
separated and the present applicant is residing at Bhavnagar with
her minor daughter namely Pratiksha, who born out of the
wedlock. She would submit that the distance between Bhavnagar
to Surat is about 357 km. and it would be caused more
inconvenience to the applicant lady to travel alone with her
minor daughter from Bhavnagar to Surat to attend the
proceedings of Family Suit instituted by the opponent-husband.
5.1 Learned advocate for the applicant would submit that the
applicant has filed criminal case being Criminal Misc. Application
No. 416 of 2024 under Section 144 of Bhartiya Nyay Sanhita,
2023 against the opponent, which is pending before the Family
Court, Bhavnagar.
5.2 Learned advocate for the applicant further would submit
that it would not be inconvenient for the opponent to appear in
the Family Court at Bhavnagar, if the Family Suit sought to be
transferred, if transferred by this Court at Family Court at
Bhavnagar. Lastly, she would submit that considering the fact
that having responsibility to look after her minor daughter, if the
Family Suit in question be transferred from Surat to Bhavnagar 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
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C/MCA/2053/2024 ORDER DATED: 24/01/2025
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(2005) 12 SCC 237.
Submission of learned advocate for the opponent.
6. Per contra, learned advocate Mr. Daxesh Barot appearing
for the opponent- husband vehemently objected this application
and submitted that Family Suit No. 1352 of 2023 which is filed by
opponent at Surat, is under Section 9 of Hindu Marriage Act,
whereby opponent is ready and willing to accept the applicant,
despite the allegation of having affairs with police constable. As
such in mediation, which was undertaken here in the present
proceedings also failed because the applicant is not ready and
willing to joint her matrimonial house. So, he request this Court
not to entertain the present application.
6.1 He would submit that merely because the applicant is a
lady, is no ground to transfer the proceedings from Surat to
Bhavnagar as prayed for. He would further submit that there
would not be any inconvenience caused to the applicant to reach
Family Court at Surat because she is literate lady and can manage
herself to travel alone from Bhavnagar to Surat.
Conclusion.
7. There is no dispute between the parties that the distance
between Bhavnagar to Surat is about 357 km one way. The
applicant is living with her minor daughter at Bhavnagar.
7.1 Keeping all this factor into account, specially considering
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C/MCA/2053/2024 ORDER DATED: 24/01/2025
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the distance between Bhavnagar to Surat is about 357 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 Surat. The
applicant takes care of her minor daughter 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.
7.2 The objection which has been raised by the opponent can
not be gone into while adjudicating the present application filed
under Section 24 of CPC. The paramount consideration while
adjudicating the application under Section 24 of C.P.C. is the
inconvenience of the applicant-wife if any, specially when she is
living far away from the place of residence of opponent, where
he has instituted the family suit. Moreover, the girl child who is
studying in standard 11th is living with the applicant at Bhavnagar
and maintenance application filed by the wife is also pending at
Bhavnagar, which prima-facie suggests that he is not having
sufficient means to attend the proceedings if not transferred as
sought for.
7.3 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 2002 SC 396,
which reads thus :-
"1. This is a transfer petition filed by the wife. She seeks the
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C/MCA/2053/2024 ORDER DATED: 24/01/2025
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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."
7.4 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 Criminal Misc. Application No. 416 of 2024
under Section 144 of Bhartiya Nyay Sanhita, 2023 against the
opponent, which is pending before the Family Court, Bhavnagar,
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, Surat to Family
Court, Bhavnagar.
7.5 So, in view of the aforesaid fact, I am inclined to grant the
prayer made in the present application. The Family Suit No. 1352
of 2023 instituted by the opponent which is pending before the
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Family Court, Surat is ordered to be transferred from Family
Court, Surat to Family Court, Bhavnagar.
7.6 Once the Family Suit No. 1352 of 2023 will be received by
the Family Court, Bhavnagar, 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.
7.7 It is open for the opponent to request the Court concerned
at Bhavnagar including Family Court at Bhavnagar to give a
common date in criminal complaint plus family suit instituted by
the opponent, thereby the opponent can attend in the
proceedings on one day. If such a prayer will be made by the
opponent to the Court concerned, learned advocate Ms. Neha
Shukla appearing for the applicant assures this Court that her
client will not object such prayer made by the opponent.
7.8 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.
7.9 With the aforesaid discussions, reasons and directions, the
present application is allowed to the aforesaid extent. Rule is
made absolute. No order as to costs.
(MAULIK J.SHELAT,J)
SALIM/
