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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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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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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