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Bhagyshreeba Wife Of … vs Dushyant Natvarsinh Solanki on 23 January, 2020

C/MCA/779/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/MISC. CIVIL APPLICATION NO. 779 of 2019

BHAGYSHREEBA WIFE OF DUSHYANTSINH NATARVARSINH SOLANKI
Versus
DUSHYANT NATVARSINH SOLANKI

Appearance:
MR SHIVANG M SHAH(5916) for the Applicant(s) No. 1
MR MANISH S SHAH(5859) for the Opponent(s) No. 1
MR PRATIK K KHUBCHANDANI(8441) for the Opponent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 23/01/2020

ORAL ORDER

Present application has been filed by the present

applicant seeking transfer of Family Suit (HMP) No. 1356 of

2019 pending before the learned Family Court, Ahmedabad to

the Family Court at Bhuj.

Heard learned advocates for the respective parties.

It was submitted by learned advocate for the applicant

that parties have never resided together at Ahmedabad nor

their marriage was solemnized at Ahmedabad nor the

respondent is residing at Ahmedabad. That, relatives of the

present applicant have also tried to settle the dispute but the

respondent herein is not willing to take present applicant back

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C/MCA/779/2019 ORDER

to her matrimonial house and application is made with intent

to harass the applicant. That, the applicant in the absence of an

independent financial support will have to face inconvenience

and difficulties. That, the applicant shall have to face great

difficulties and hardship if she has to travel from Bhuj to

Ahmedabad and since the applicant is a lady, the comparative

hardship would be more. It was submitted by learned advocate

for the applicant to allow present application.

Learned advocate for the respondent no.1 has strongly

objected the submissions made by learned advocate for the

applicant and submitted that the respondent no.1 has a liability

of his old grand father having age of 85 years. That, serous

allegations are made by the respondent No.1 against the

present applicant in a divorce petition preferred by him.

Leaned advocate has drawn attention of the zerox copy of the

affidavit of Parmar Mahobatsinh Madhusinh, residing at

Khedbrahma and argued that he had talk with the father of the

present applicant wherein he was informed that if the

respondent no.1 visited at Bhuj, he would be murdered and

would face serious consequences. He further submits that

respondent no.1 would be visited at Bhuj, there was serious

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C/MCA/779/2019 ORDER

danger to his life. That, the respondent no.1 is ready and

willing to pay cost to the applicant to travel from Bhuj to

Ahmedabad as his grand parents are aged about 80 years and

60 years old. Considering the hardship to be faced by the

respondent no.1, learned advocate for the respondent no.1 has

requested to dismiss present application. Learned advocate for

the respondent no.1 has placed reliance upon the case in Neha

Arun Jugadar and Anr. v. Kumari palak Diwan Ji,

reported in AIR 2011 SC 1164 and Anindita Das v. Shrijit

Das reported in (2006)9 SCC 197.

Learned advocate for the respondent no.2 has stated that

the respondent no.2 has no objection for transferring the

petition as he is unnecessarily joined as a party as well as he is

not interested in the proceedings between the applicant and

respondent no. 1.

Having considered the averments made in the present

application as well as submissions made by learned advocates

for the respective parties, it appears that applicant is staying at

Bhuj and she has filed application under Section 125(3) of the

Code of Criminal Procedure before the Family Court, Bhuj

which was registered as Criminal Misc. Application No. 103 of

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C/MCA/779/2019 ORDER

2019. From the other side, respondent No.1 has filed divorce

petition ie. Family Suit No. 1359 of 2019 before the Family

Court, Ahmedabad. Respondent No.1 has previously filed one

application under Section 9 of the Hindu Marriage Act, which

was registered as HMP No. 5 of 2018 before the learned

Senior Civil Judge at Khedbrahma and thereafter, it was

withdrawn. It appears from the record that the applicant shall

have to face great difficulties and hardship if she would be

compelled to visit and remain present in the proceedings

preferred by the respondent No.1 at Ahmedabad. It is stated in

the application that father of the applicant is retired and had

attack of paralysis, and therefore, it would be difficult for her

to travel at Ahmedabad.

In case of Neha Arun Jugadar and Anr. v. Kumari

palak Diwan Ji, reported in AIR 2011 SC 1164, Hon’ble

Apex court has held that in an application under Section 24 of

C.P.C., transfer of the case cannot be ordered on the ground

that court where case was pending had no jurisdiction. Party

has to apply to Court for dismissing case on that ground.

In subsequent case of Anindita Das v. Shrijit Das

reported in (2006)9 SCC 197, Hon’ble Apex court has held

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C/MCA/779/2019 ORDER

that grand parents available to look after the child and

respondent willing to bear all expenses for travel and stay of

the petitioner and her companion for ever visit to attend court

at Delhi.

Facts of each case would be required by this Court. Here,

considering the facts of the present case, as the applicant has

preferred Criminal Misc. Application No. 103 of 2019 before

the Family Court at Bhuj-Kutch whereas the respondent no.1

ha preferred Family Suit No. 1356/2019 before the learned

Family Court, Ahmedabad. Therefore, prayer made by the

applicant requires consideration.

Having heard learned advocates for the respective parties

and averments made in the application by the applicant and

averments made in the affidavit filed by the respondent no.1, it

appears that reasons for transferring the matter appears to

have been sufficiently explained by the learned advocate for

the applicant and thus, this court deems it fit to grant the

prayer of the applicant.

Accordingly, present application stands allowed. The

Family Suit (HMP) No. 1356 of 2019 pending before the

learned Family Court, Ahmedabad is ordered to be transferred

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C/MCA/779/2019 ORDER

to the the Family Court at Bhuj and Judge, Family Court, Bhuj

shall conduct the said matter in accordance with law.

Proceedings before the different courts at Bhuj initiated by the

wife shall be fixed on the same date by the concerned court.

Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J)
K. S. DARJI

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