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Anika Sen Alias Sampa Rani Bhadra vs Sudipta Sen on 2 January, 2020

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10 02.01.2020
Aloke Court No.17
C.O. 628 of 2019

Anika Sen alias Sampa Rani Bhadra
Vs
Sudipta Sen

Mr. Kushal Paul
Mr. Satarshi Dutt
….for the Petitioner

Mr. Sanjay Mukherjee
Mr. Dipayan Chaudhury
Ms. Priyanka Chowdhury
….for the Respondent

This is an application under Section 24 of the Code

of Civil Procedure filed by the wife of the petitioner praying

for transfer of Matrimonial Suit 50 of 2017 pending before

the 1st Court of the learned Additional District Judge at

Alipore to any Court of competent jurisdiction at Kalyani

in the District of Nadia.

For proper adjudication of the instant application

following facts are considered to be necessarily recorded :

Marriage of the petitioner with the opposite party

was solemnized on 26th February, 2014. On 4th March,

2014 she was either driven out or left the matrimonial

home. The husband/opposite party subsequently

instituted a suit for nullity of the said marriage on the
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ground that the petitioner is suffering from schizophrenia.

The said suit was withdrawn with an understanding that

the parties would file an application for mutual divorce

under Section 13B of the Hindu Marriage Act in a

competent Court having jurisdiction to try such matter. It

was also agreed upon by and between the parties that the

opposite party will pay a sum of Rs.5 lacs to the petitioner

before the decree of mutual divorce be passed. It is also

undisputed that the opposite party paid a sum of Rs.2.5

lacs to the petitioner and after receiving the said money

the petitioner stopped attending the Court. Accordingly,

the said proceeding for mutual divorce was dropped on the

ground that the statutory period had expired.

Subsequently, in 2017, opposite party instituted

Matrimonial Suit No. 50 of 2017 which is presently

pending before the 1st Court of the learned Additional

District Judge at Alipore.

The petitioner has prayed for transfer of the said

suit to Kalyani on the ground that her father is suffering

from brain hemorrhage and he is unable to move. The

mother of the petitioner is also suffering from hyper-

tension and other ailments. Therefore, there is nobody at

her paternal home to accompany her to Alipore Court to
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contest the said suit. Secondly, the petitioner/wife has

been working as Assistant Professor and head of the

department of Computer Science in Kalyani

Mahavidyalaya. Her college hours is from 11 a.m. to 4

p.m. Apart from taking classes, as head of the

department, undertakes various responsibilities of college

administration. Therefore, it is not possible for her to

attend the Court at Alipore to contest the said matrimonial

suit.

It is pointed out by the learned Advocate for the

petitioner that she has been residing at Kalyani for her job

commitment and in support of his contention he refers to

certain documents wherefrom it is ascertained that she

has taken a flat on rent at the rate of Rs.7,000/- per

month at Kalyani. It is also submitted by the learned

Advocate for the petitioner that the petitioner lodged a

complaint under Section 498A of the Indian Penal Code

against the opposite party and other matrimonial relations

at Thakurpukur P.S. within the jurisdiction of Alipore.

The said complaint culminates to filing of the

charge-sheet against the opposite party and others. The

petitioner does not deny that she will have to come once to

Alipore to depose in the said criminal case. The opposite
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party on the other hand has filed a complaint under

Section 406 of the Indian Penal Code in which proceeding

the petitioner is on bail. Charge-sheet has not been

submitted as yet in the said proceeding. On the contrary,

in the matrimonial proceeding the petitioner will have to

come to Alipore to consult her case with the learned

Advocate. She will require to be present on each and every

date of hearing to see that her case is properly conducted.

In this respect the petitioner will suffer from actual

inconvenience. This inconvenience must be taken into

consideration while disposing of the instant proceeding

and in support of his contention, learned Advocate for the

petitioner relies upon a decision of the Hon’ble Supreme

Court in the case of Rajani Kishor Pardeshi vs. Kishor

Babulal Pardeshi reported in (2005) 12 SCC 237.

Learned Advocate for the opposite party, on the

other hand has urged to take into consideration the

conduct of the petitioner starting from the date of

marriage till date. After marriage the opposite party and

his family members noticed unnatural violent behaviour of

the petitioner. Accordingly, it was enquired upon and they

came to know that the petitioner is suffering from

schizophrenia. The petitioner initially agreed to dissolve
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the marriage mutually and both the parties filed a joint

application under Section 13B of the Hindu Marriage Act.

But immediately after receiving a sum of Rs.2.5 lacs from

the opposite party she stopped appearing before the Trial

Court. Finding no other alternative the opposite party has

filed the aforesaid matrimonial suit for dissolution of

marriage by decree of divorce at Alipore. It is contended by

the learned Advocate for the opposite party referring to a

decision of the Hon’ble Supreme Court in the case of

Indian Overseas Bank, Madras Vs. Chemical

Construction Company and Ors. reported in (1979) 4

SCC 358 that the principle governing the general power of

transfer and withdrawal under Section 24 of the Code is

that the plaintiff is the dominus litis and, as such, entitle

to institute his suit in any forum which the law allows

him. The Court should not lightly change that forum and

compel him to go to another Court with consequent

increase in inconvenience and expense of prosecuting his

suit. The mere balance of convenience in favaour of

proceedings in another Court, albeit a material

consideration, may not always be a true criterion

justifying the transfer.

Learned Advocate for the opposite party also refers
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to Section 25 of the Code of Civil Procedure and tries to

make a distinction stating inter alia that Section 25

empowers the Hon’ble Supreme Court to pass an order of

transfer of suit if the Court is satisfied that an order under

this Section “is expedient for ends of justice”. However, no

such event is contained in Section 25 of the Code of Civil

Procedure. Furthermore, it is urged that the petitioner is

an Assistant Professor of a college and head of the

department of Computer Sciences, therefore, she is not

dependant upon anybody economically. An independent

working lady can freely cover a distance of about 40 kms.

to contest the matrimonial suit.

Under the facts and circumstances of this case, the

principles laid down in Rajani Kishor Pardeshi (supra) is

not applicable.

Having heard the submissions made by the learned

Advocates for the petitioner and the opposite party and on

perusal of the application under Section 24 of the Code of

Civil Procedure, affidavit-in-opposition thereto and the

affidavit-in-reply, it is found that material change

concerning the dispute between the parties are not in

dispute. Though, this Court is not in a position to make

any comment on the allegation of the opposite party, but
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prima facie it seems to this Court strange and surprising

that a lady suffering from schizophrenia has been

discharging a responsible duty of an Assistant Professor of

a college and head of the department of Computer

Sciences. There is no allegation of schizophrenia

behaviour against the petitioner by the college authority.

However, for the purpose of this proceeding if I accept the

submission made by the learned Advocate for the opposite

party, a question naturally comes for consideration as to

whether a lady who has been suffering from schizophrenia

should be permitted to travel alone a distance of about 40

kms. to contest a suit where her marital tie is sought to be

dissolved by a decree for divorce. If such allegation is

accepted it may so happen that the petitioner may suffer

from schizophrenic outburst at Alipore where there will be

nobody to control her. At least in Kalyani she will have her

paternal relations to look after her. In the instant matter

this Court does not concede the distance to be travelled by

the petitioner to contest the suit at Alipore. This Court

relies upon the submission on behalf of the opposite party

that the lady is suffering from schizophrenia and

convenience demands that the trial of the suit would

continue at the place where the lady resides.
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In view of the above discussion, I am inclined to

allow the instant application under Section 24 of the Code

of Civil Procedure. Matrimonial Suit No. 50 of 2017 be

transferred to the Court of the learned Additional District

Judge, Kalyani, Nadia for trial and disposal.

Let a copy of this order be sent to the learned

Additional District Judge, 1st Court at Alipore, South 24-

Parganas and the learned Additional District Judge,

Kalyani at Nadia through the department for information

and compliance.

I make it clear that while disposing of the instant

application I have not come to any finding as to whether

the petitioner is suffering from schizophrenia or not and

the entire matter is left open the Trial Court to decide

while deciding the grant of dissolution of marriage in

course of trial of the suit.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties upon usual

undertaking.

(Bibek Chaudhuri, J.)

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