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Akb Smt. Nivedita Dey vs Sri Arunabha Dey on 25 June, 2019

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3 25.6.19 C.O. 4299 of 2018
akb Smt. Nivedita Dey
Vs.

Sri Arunabha Dey

Mr. Debasish Sarkar …For the Petitioner

Mr. Amitava Ghosh …For the Opposite Party

This is an application under Section 24 of the
Code of Civil Procedure at the instance of the wife/petitioner
seeking transfer of matrimonial suit, being Mat. Suit No. 642
of 2018 from the Court of learned Civil Judge (Junior
Division), 4th Court at Purba Bardhaman to the Court of the
learned District Judge at Alipore.

It is the petitioner’s specific case that while she
was in her matrimonial home, the petitioner wife went to
draw money from her own bank account to purchase some
medicines for her son and after a while when she came back
to home, she surprisingly found that her matrimonial home
was locked. The petitioner wife with the help of some
neighbours went to the local Police Station to lodge a
General Diary but refused to register the same. Ultimately,
the petitioner filed a written complaint before the District
Magistrate (East Burdwan), Superintendent of Police (East
Burdwan), I.C. (East Burdwan) and Women Police Station
(East Burdwan) on November 29, 2018 informing about the
said destitute condition. It is her allegation that although she
ran everyday to the Women Police Station (East Burdwan)
from November 28, 2018 to December 02, 2018 with her
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prayer but the Police Officer did not pay any heed and lastly
with the intervention of Higher Officers (Police Personnel)
accepted the General Diary on December 02, 2018 and
without considering the previous complaint lodged by the
petitioner on November 29, 2018 Police Authorities
registered an F.I.R. on the basis of the General Diary No. 29
dated December 02, 2018 and initiated Purba Bardhaman
Women Police Station Case No. 297 of 2018 under Section
498A/Section34 of the Indian Penal Code.

It is the further case of the petitioner that while
she was very much living with the husband in the
matrimonial home, husband of the petitioner filed a suit for
divorce beyond her knowledge. Only when summon was
issued and served upon her in her matrimonial home she
came to learn about the matrimonial suit pending in the
Court at Burdwan. According to her, such summon was
served upon her on November 27, 2018 at her matrimonial
home.

According to the petitioner, she is now residing
at her parental home at 238A, Becharam Chatterjee Road,
Police Station – Parnasree, Behala, Kolkata 700 034.

It is the submission made on behalf of the
petitioner that distance from Behala to East Burdwan would
be about 115 kms. and it is impossible for her to attend the
matrimonial suit. After the Sectionsection 24 application has been
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filed, the petitioner filed an application under Section 12 of
the Protection of Women from SectionDomestic Violence Act, 2005
before the learned additional Chief Judicial Magistrate at
Alipore, South 24-Parganas. A copy of such application has
been annexed to the supplementary affidavit filed by the
wife/petitioner. In the said application the petitioner has
sought for custody of four year old male child who has been
residing presently with the father. The petitioner has also
filed an application under Section 125 of the Code of
Criminal Procedure for her maintenance, being Maintenance
Case No. 95 of 2019, which is currently pending before the
learned Additional Chief Judicial Magistrate at Alipore.

In addition to the case made out by the petitioner
that subsequent maintenance proceeding and Section 12
proceedings pending in the Court at Alipore it is very
difficult for her to attend the matrimonial suit at Burdwan on
the ground as mentioned in paragraph 19 of her petition that
the family members of the opposite party/husband are very
influential persons particularly that the father-in-law of the
petitioner is a retired police personnel. In this context the
petitioner makes a prayer for transfer of the matrimonial suit
to the Court at Alipore.

Learned Advocate appearing for the opposite
party/husband relying from the affidavit-in-opposition filed
in Court submits that filing of the Section 12 proceeding and
maintenance proceeding under Section 125 are after thought
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to create problems for the husband. He further submits from
the cause title of the petition it is apparent that the wife’s
address has been shown to be at Burdwan. Therefore,
according to him, there can be no reason to allow her prayer
for transfer of the matrimonial suit from Burdwan Court to
anywhere else.

Heard both the parties at length. Considering
the materials disclosed in the petition, respective affidavits
filed by the parties as also the supplementary affidavit filed
on behalf of the petitioner.

The ground which has been shown that Section
12 proceeding and Section 125 maintenance proceedings are
pending at Alipore Court at the instance of the wife, in my
view, are no ground for transfer of the matrimonial suit from
Burdwan to Alipore Court. However, it is also not correct to
hold that since address of the petitioner has been shown to
be of Burdwan the suit should be kept in Burdwan Court.

I have already pointed out that while she was
residing at her matrimonial home, summons of the divorce
suit was served upon her in that address.

On perusal of the fact disclosed in the petition,
affidavits as also supplementary affidavit it is clear that the
petitioner may not be very safe to attend the matrimonial suit
in the Burdwan Court for the surrounding circumstances
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which has already been disclosed in the petition and the
apprehension expressed by the petitioner. In my view
apprehension expressed appears to be reasonable
apprehension. It is also alleged by the husband that the wife
has taken forcible possession of his residential
accommodation for which a criminal proceeding is going on,
which is a matter of evidence. From the materials disclosed
in the petition and the affidavits respectively, it is apparent
that the husband is residing in Burdwan, whereas wife
resides at Behala within the jurisdiction of Alipore Court. On
behalf of the husband it has been submitted that one of the
petitioner’s relation is a practising Advocate of Alipur Court
Bar association and the husband is scared of him.

Be that as it may, in my view, it is the fact that if
the matrimonial suit is kept at Burdwan it will be
inconvenient and unsafe for the wife to attend the
matrimonial suit there. Therefore, I hold that the said
proceeding should be withdrawn from the Court at Burdwan.

Accordingly, I direct withdrawal of the
Matrimonial Suit No. 642 of 2018 from the Court of the
Civil Judge (Junior Division), 4th Court at Purba Bardhaman
and transfer the same to the Court of the learned District
Judge Hooghly at Chinsurah.

Accordingly, the matrimonial proceeding
pending in the Court of the learned Civil Judge (Junior
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Division), 4th Court at Purba Bardhaman is withdrawn and
the same is transferred the learned District Judge at
Chinsurah Court, Hooghly. Learned Civil Judge (Junior
Division), 4th Court at Purba Bardhaman is directed to
transmit the records pertaining to Matrimonial Suit No. 642
of 2018 to the learned District Judge at Chinsurah Court,
Hooghly. After receipt of the case records the learned
District Judge at Chinsurah Court, Hooghly shall assign the
matter to any additional Court at Chinsurah. After such
assignment is made, the learned transferee Court is also
directed to issue notice afresh to the parties before
proceeding with the suit.

The application under Section 24 of the Code of
Civil Procedure is disposed of.

Urgent photostat certified copy of this order, if
applied for, be given to the petitioner, on priority basis.

( Sahidullah Munshi, J.)

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