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Mamoni Halder (Sen) vs Asish Sen on 27 February, 2019

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27.02.19

Srimanta
List – S/L
Sl. No. 05
Ct. No. 25
C. O. 3173 of 2018

Mamoni Halder (Sen)

-Vs.-

Asish Sen

Mr. Prasanta Behari Mahata, Adv.,
Mr. Deb Sankar Das, Adv.

…for the petitioner.

Mr. Dhananjoy Banerjee, Adv.

…for the opposite party.

By filing the instant application under Section 24 of the Code of Civil
Procedure the wife/petitioner has prayed for transfer of Matrimonial Suit No. 748
of 2016 from the Court of the learned District Judge, Paschim Medinipur to the
Court of the learned Additional District Judge, Jhargram.

In her application the petitioner has stated that her marriage with the
opposite party was solemnized on 15th December, 2010. In the said wedlock,
petitioner gave birth to a female child. However, due to marital discord and
differences between the parties, the petitioner was driven out from her
matrimonial home on 8th May, 2016. At present, she has been residing with her
parents and the minor child at her paternal home at Belpahari, in the district of
Jhargram. It is stated by the petitioner that distance of Medinipur Court from his
paternal home is more than 40 kilometers having poor conveyance facilities. On
the other hand, distance between Belpahari and Jhargram is only 18 kilometers.
Therefore, if the matrimonial suit is transferred to the Court of the learned
Additional District Judge, Jhargram, the petitioner will be benefited inasmuch as
she will be able to represent and defend the matrimonial suit properly.

Mr. Dhananjoy Banerjee, learned Advocate for the opposite party, on the
other hand, submits that after marriage both the petitioner and the opposite party
used to reside in a rented house at Medinipur town. In the year 2016, she lodged
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a written complain at Kotwali Police Station against her husband and other
matrimonial relations under Sections 498A/323/325/307/34 of the Indian Penal
Code and Section 3 and 4 of the Dowry Prohibition Act on the basis of which
Kotwali Police Station Case No. 405 of 2016 dated 9th May, 2016 has been
registered. The investigation of the aforesaid criminal case culminated to filing of
charge-sheet. The petitioner is regularly attending Medinipur Court to pursue her
case. Therefore, the story of inconvenience for the reason of distance of
Medinipur Court from Belpahari is manufactured one.

I have heard learned Advocates for the petitioner and the opposite party
and perused the materials-on-record. It is needless to say that while disposing of
a proceeding under Section 24 of the Code of Civil Procedure arising out of a
matrimonial suit, convenience of the wife should be regarded as the prime
consideration. It is ascertained from the submission made by the learned
Advocate for the petitioner that the distance of Medinipur Court from Belpahari is
more than 40 kilometers, whereas from Belpahari to Jhargram, it is approximately
18 kilometers. Therefore, the question that falls for consideration is as to whether
serious hardship would be caused to the petitioner to travel extra 22 kilometers to
defend the matrimonial suit.

It is held by the Supreme Court in the case of Anindita Das -Vs.- Srijit
Das, reported in 2006 (9) SCC 197 that though leniency is shown to the wife in a
proceeding under Section 24 of the Code of Civil Procedure, each case should be
decided on its peculiar facts and circumstances.

In the instant case, the petitioner is having a minor child. At present, she
has been staying under the care of her parents at Belpahari. On the dates of
hearing of the matrimonial suit, the child of the petitioner can be looked after by
her grandparents. Considering the fact that a criminal proceeding at the instance
of the petitioner is pending at Medinipur Court, I am not inclined to transfer the
matrimonial suit from Medinipur Court to Jhargram Court.

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However, while rejecting the application under Section 24 of the Code of
Civil Procedure, it is directed that the opposite party will bear the cost of
conveyance charges for the petitioner on the dates of hearing of the matrimonial
suit from Belpahari to Medinipur and back, which is assessed at Rs.250/- per day.

With the above observation, the application under Section 24 of the Code of
Civil Procedure is disposed of.

Let a copy of this order be sent to the learned District Judge, West
Medinipur through the office of this Court.

Urgent photostat certified copy of this order, if applied for, be given to the
learned Advocates for the parties on the usual undertakings.

(Bibek Chaudhuri, J.)

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