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Bijaya Bhattacharya vs Sri Ayan Bhattacharya on 20 February, 2020

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20.02.2020

Mithun
List – S/L
Sl. No. 15
Ct. No. 17
C.O. 3900 of 2019

Bijaya Bhattacharya

-Vs.-

Sri Ayan Bhattacharya

Mr. Abhimanya Banerjee, Adv.

… for the Petitioner.

Mr. Sabyasachi Mukherjee, Adv.

Ms. Namrata Das, Adv.

Ms. Arunima Das Sharma, Adv.

Mr. Bibek Dey, Adv.

… for the Opposite Party.

Affidavit-of-service be kept with the record.

Matrimonial Suit No.533 of 2019 filed by the opposite party against his
wife/petitioner herein praying for dissolution of marriage by a decree of divorce in
the 2nd Court of learned Additional District Judge at Barrackpore, North 24-
Parganas is sought to be transferred by the petitioner to the Court of learned
District Judge at Alipurduar.

It is stated by the petitioner that her marriage was solemnized in the year
2014 when she was staying at her matrimonial home. She was subjected to
torture from August, 2017 to April, 2018 and ultimately on 1st May, 2018, she was
driven out from her matrimonial home. Since then she has been residing at her
paternal home at Alipurduar. The distance between Alipurduar and Barrackpore is
more than 600 Kilometers and it takes about 18 to 19 hours to reach Barrackpore
from Aliporduar. It is also stated that the petitioner instituted an application
under Section 125 of the Code of Criminal Procedure praying for maintenance in
the Court of the learned Magistrate at Alipurduar. The opposite party contested
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the said application and it was disposed of. Another criminal case under Section
498A and other penal provisions against the opposite party is pending at
Alipurduar. Since the other legal proceedings are pending at Alipurduar, the
matrimonial suit filed at Barrackpore should also be transferred to the Court of the
learned Additional District Judge at Alipurduar. The learned Advocate for the
opposite party has primarily raised a question as to whether an application under
Section 24 dehors any ground is maintainable or not. Secondly, it is submitted by
the learned Advocate for the opposite party that the opposite party contested the
proceeding under Section 125 of the Code of Criminal Procedure under compulsion
at Alipurduar. Due to such reason, the matrimonial suit should not be
transferred. Thirdly, it is submitted on behalf of the opposite party that his father
is suffering from cancer and the opposite party will also face inconvenience to
represent his case in the said matrimonial suit at Alipurduar.

First objection first. In the application, the petitioner has stated the facts of
her marriage with the opposite party inflexion of torture by the opposite party
upon her leaving her matrimonial home and taking shelter at her paternal home
at Alipurduar. In paragraph 7 of the application, the petitioner has stated that
upon her complaint, a case under Section 498A/323/506/34 IPC is pending before
the learned Additional Chief Judicial Magistrate at Alipurduar. The said case is
registered as C.R.Case No.431 of 2018. In Paragraph 20 of the application, the
petitioner has stated that the distance between Alipurduar and Barrackpore is 666
kilometers by road which takes normally 18 to 19 hours to travel by public
transport with split up journey. It is true that the petitioner has not reiterated the
said fact in the application under the heading grounds.

Form of an application is a matter of procedure to be followed by the parties
while filing an application. It is settled principle of law that procedure is hand
made of justice and substantial justice cannot be ignored for technical failure of
compliance of any procedure. What is needed to the Court is to ascertain as to
whether there exists any ground in support of the prayer of the application or not.

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The applicant is a destitute lady driven out of her matrimonial home. She is
now staying at her paternal home which is situated at a distance about 666
kilometers from the place where the opposite party has instituted the suit for
divorce. Well-settled is the law in a proceeding under Section 24 of the Code of
Civil Procedure arising out of an matrimonial suit, paramount consideration is the
evidence of the wife. In support of this observation, this Court can rely upon a
decision of this Hon’ble Supreme Court in Rajani Kishor Pardeshi Vs. Kishor
Babulal Pardeshi reported in (2005)12 SCC 237.

In the case of Tejalben Vs. Mihirbhai Bharatbhai Kothari reported in (2016)3
SCC 69, the Hon’ble Supreme Court was pleased to transfer a suit for divorce to
Jamnagar in the State of Gujarat on the ground that other proceedings between
the parties are pending at Jamnagar. In the instant case also other proceedings
between the parties are pending at Alipurduar. Therefore, relying on the above-
mentioned precedents laid down by the Hon’ble Supreme Court in the aforesaid
decisions, I am of the considered view that the prayer of the petitioner should be
allowed. Accordingly, Matrimonial Suit No.533 of 2019 pending before the 2nd
Court of the learned Additional District Judge at Barrackpore be transferred to the
Court of the learned District Judge, Alipurduar for trial and disposal.

A copy of this order be sent to both the courts below through the
department forthwith for information and compliance.

Urgent photostat copy of this order, if applied for, be supplied to the
parties subject to compliance with all requisite formalities.

(Bibek Chaudhuri, J.)

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