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Hiralben W/O Nishant Shah D/O … vs Nishant Dharmvadan Shah on 26 February, 2020

C/MCA/1176/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/MISC. CIVIL APPLICATION NO. 1176 of 2019

HIRALBEN W/O NISHANT SHAH D/O NARESHKUMAR SHANTILAL SHAH
Versus
NISHANT DHARMVADAN SHAH

Appearance:
MR BRIJESH K RAMANUJ(9898) for the Applicant(s) No. 1
MR KRUNAL G PATEL(8525) for the Opponent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 26/02/2020
ORAL ORDER

Present application has been filed by the present applicant

seeking transfer of Family Suit No.47 of 2019 pending before

the learned Family Court, Surendranagar to learned Family

Court, Surat.

Heard learned advocates for the respective parties.

It was submitted by learned advocate for the applicant

that the distance between Surat to Surendranagar is 361 k.m.

approx..and it is a journey of around 7 hours by road, so it is

very difficult for the applicant to go to Surendranagar on every

date of the Court proceedings pending before Surendranagar.

That, the applicant is living with her father and he is suffering

from some health issues as he was diagnosed with cancer in the

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year 2000. That, under such circumstances, it would be

extremely difficult for the applicant to visit the Court at

Surendranagar . That, the applicant’s father is not able to walk

and even doctor had suggested for the knee replacement

surgery so presence is required with her father all the time so

it is very difficult for the applicant to go and contest the Family

Suit No. 47 of 2019 filed by the respondent -husband before the

Family Court, Surendranagar. He has relied upon the decision

of the Hon’ble Apex Court rendered in case of Vaishali

Shridhar Jagtap Vs. Shridhar Vishwanath Jagtap passed in

Civil Appeal Nos. 6159-6160 of 2016 (Arising out of SLP

(C)Nos. 15558-15559 of 2014) as well as decision of the

Hon’ble Apex Court rendered in Transfer Petn. (C)No. 396

of 2000 dated 26.2.2001.

Learned advocate for the respondent has opposed the

prayer made by the present applicant stating that respondent

is Government servant and it is very difficult to attend the

court proceedings at Family Court, Surat. It is further

submitted that divorce petition was preferred by the

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C/MCA/1176/2019 ORDER

respondent which is pending before the Family Court,

Surendranagar. That, the applicant herself has deserted the

respondent without any cogent reason. That, there is no

ground available for making prayer of transferring Family

Suit No.47 of 2019 pending before the learned Family Court,

Surendranagar to learned Family Court, Surat. That, he is

ready to bear expenditure of transportation of present

applicant to attend the court proceedings at Family Court,

Surendranagar. He has relied upon the decision of the Apex

Court rendered in case of Anindita Das Vs. Srijit Das

reported in (2006) 9 SCC 197 and another decision of this

Court passed in Misc. Civil Application No. 21 of 2019

dated 14.102019 [Coram: Hon’ble Mr. Justice

A.S.Supehia] and requested to dismiss this application.

Having considered the facts of the case and having heard

learned advocates for the respective parties and averments

made in the application by the applicant, it appears that

respondent -husband has filed Family Suit No. 47 of 2019 for

divorce against present applicant u/s. 13(1)(1-A(1-B) of the

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Hindu Marriage Act which is pending before Family Court,

Surendranagar. That, marriage of the applicant with the

respondent was solemnized on 30.11.2012. That, an

application u/s. 125 of the Cr.P.C being Criminal Misc.

Application No. 1277 of 2014 was preferred by the present

applicant before Family Court, Surat which was came to be

allowed and maintenance of Rs.4,000/- per month was awarded

.As per averments made in this application by the applicant, her

father is suffering health issue and diagnosed with cancer in the

year 2000 and condition of the father is not well and her father

is not able to walk and even doctor had advised for the knee

replacement surgery and presence of the applicant with her

father during such critical position would be required . That,

respondent is serving in Government servant and he cannot

claim for exemption to attend the proceedings before the

Family Court, Surat. As per averments made in this application

the distance between Surat to Surendranagar is 361 k.m

approx. and journey period is about 7 hours and therefore, it

would be very difficult on the part of the applicant to

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C/MCA/1176/2019 ORDER

Surendranagar on every date to contest the Family Suit No. 47

of 2019 pending before Family Court, Surendranagar . That,

balance of convenience is required to be considered by this

Court for transferring the Family Suit No. 47 of 2019 preferred

by the respondent -husband. This would not create any more

inconvenience to him while not transferring the aforesaid suit,

would create more difficulty for the applicant-wife. The

decision of this Court passed M.C.A No. 21 of 2019 wherein,

request was made to transfer Family Suit No. 965 of 2018 from

Family Court, Vadodara to the Family Court, Ahmedabad. The

only reason for transfer of the proceedings was based on

distance between Ahmedabad to Vadodara is 100 k.m. Here in

the present case the distance between Surendranagar to Surat

is 361 k.m. one way . That, the condition of the father of the

present applicant would also require to be considered . Another

decision of the Apex Court rendered in case of Anindita Das

(Supra) wherein, the Apex Court has declined to transfer

proceedings initiated by the wife and observed that the

Court is now required to consider each petition on its merit . In

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this case, grandparents were available to look after the child

and respondent was ready and willing to bear all expenses for

travel and stay of the petitioner and her companion for every

visit to attend court at Delhi .Petitioner, except for stating that

she was not keeping good health, had not given any further

particulars.

Considering the facts of the case and prayer for

transfer of the proceedings were denied by the Hon’ble Apex

Court. Thereafter, another decision of the Apex Court rendered

in case of Vaishali Shridhar Jagtap (supra) wherein Hon’ble

Apex Court allowed the transfer petition considering the

distance between Mumbai and Barshi around 400 k.m. . In

another decision of the Hon’ble Apex Court rendered in case of

Sumita Singh (Supra) conveniency of wife was observed to be

looked at most. Considering the circumstances indicate, it was

held that there was sufficient ground to make transfer petition

absolutely. Here in the facts of the present case distance

between Surat to Surendranagar is 361 k.m. approx. one way

and journey period is around seven hours by road. Health issue

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of her father is diagonalized as ailment of cancer. That,

presence of applicant with her father to take care is necessary

and comparative hardship on her part would require to be

considered. Therefore, this court deems it fit to grant the

prayer of the applicant.

Accordingly, present application stands allowed. Family

Suit No. 47 of 2019 pending before the Family Court,

Surendranagar is ordered to be transferred to the learned

Family Court, Surat and learned Judge, Family Court, Surat

shall conduct the said matter in accordance with law. Rule is

made absolute.

(B.N. KARIA, J)
BEENA SHAH

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