Manisha Karki vs Daulat Khatiwada
2021 Latest Caselaw 6 Sikkim

              THE HIGH COURT OF SIKKIM : GANGTOK
                        (Civil Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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                     Transfer Petition (Civil) No.01 of 2020

         Ms. Manisha Karki
         W/o Shri Daulat Khatiwada,
         Resident of Sakyong,
         P.O. & P.S. Gyalshing,
         West Sikkim.
         Presently residing at Upper Tadong,
         East Sikkim.
                                        ..... Petitioner

                                                  Versus

         Shri Daulat Khatiwada,
         Son of late Prabhu Ram Khatiwada,
         Resident of Sakyong,
         P.O. & P.S. Gyalshing,
         West Sikkim.
                                       ..... Respondent
Application under Sections 22 and 24 read with Section
     151 of the Code of Civil Procedure, 1908.
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Appearance:
                    Ms. Gita Bista, Advocate for the petitioner.

                    Mr. Yadev Sharma and Ms. Pema Bhutia,
                    Advocates for respondent.

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    Date of hearing             :      26.02.2021 & 01.03.2021
      Date of Judgment                             :         01.03.2021

                           J U D G M E N T (O R A L)

Bhaskar Raj Pradhan, J.

1. An application for transfer of the proceeding pending

before the learned Family Judge, West Sikkim at Gyalshing

Transfer Petition (Civil) No. 01 of 2020 Manisha Karki v. Daulat Khatiwada

i.e. F.C. (Civil) Case No. 14 of 2020 filed by the respondent-

husband against the petitioner-wife for divorce under

Section 13(1) (ia) of the Hindu Marriage Act, 1955 has been

filed by the petitioner under Sections 22, 24 read with

Section 151 of the Code of Civil Procedure, 1908. The

petitioner urges that the marriage of the petitioner and

respondent was solemnised at Gangtok, East Sikkim; the

petitioner who is the respondent in the divorce proceeding,

at the time of presentation of the petition was residing in

Gangtok, East Sikkim and continues to do so; the

petitioner is unemployed and has no income of her own; a

petition under Section 125 of the Code of Criminal

Procedure, 1973 for maintenance filed by her is pending

before the learned Judge, Family Court, East Sikkim at

Gangtok i.e F.C. Case (Criminal) No.30 of 2020 and as the

petitioner has recently delivered a stillborn baby, she has

complications with her health and cannot travel the long

and difficult distance between Gangtok to Gyalshing. The

learned counsel representing the parties submits that the

issues are yet to be settled before the Family Court,

Gyalshing, West Sikkim in the proceeding.

Transfer Petition (Civil) No. 01 of 2020 Manisha Karki v. Daulat Khatiwada

2. Section 22 contemplates that where a suit may be

instituted in any one of two or more courts and is

instituted in one of such courts, any defendant, after notice

to the other parties, may, at the earliest possible

opportunity and in all cases where issues are settled at or

before such settlement, apply to have the suit transferred

to another Court, and the Court to which such application

is made, after considering the objections of the other

parties (if any), shall determine in which of the several

Courts having jurisdiction the suit shall proceed. Section

24 relates to the general power of transfer given to the High

Court as well as the District Court.

3. A reading of Section 19 of the Hindu Marriage Act,

1955 makes it clear that the present divorce proceeding

filed by the respondent before the Family Court, Gyashing

West Sikkim could have been filed at Gangtok as well, since

the marriage was solemnised and that the petitioner-the

respondent in the divorce petition at the time of

presentation of the petition was residing at Gangtok and

continues to do so.

4. Mr. Yadev Sharma, learned counsel for the

respondent fairly submits that his client has no objection if

the divorce petition pending before the Family Court

Transfer Petition (Civil) No. 01 of 2020 Manisha Karki v. Daulat Khatiwada

Gyalshing West Sikkim is transferred to the Family Court,

Gangtok, East Sikkim.

5. In view of the facts and circumstances as stated

above, the application for transfer is allowed. F.C. (Civil)

Case No. 14 of 2020 titled Daulat Khatiwada v. Manisha

Karki pending before the Family Court at Gyalshing is

transferred to the Family Court Gangtok, East Sikkim

where F.C. Case (Criminal) No. 30 of 2020 titled Manisha

Karki v. Daulat Khatiwada is pending. The transfer petition

is allowed. No order as to cost.

                                                     ( Bhaskar Raj Pradhan )
                                                            Judge




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