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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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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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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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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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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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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