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Nayna D/O Arayanbhai Shankarbhai … vs Bharatbhai Lilabhai Valand on 20 February, 2020

C/MCA/158/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/MISC. CIVIL APPLICATION NO. 158 of 2019

NAYNA D/O ARAYANBHAI SHANKARBHAI NAYI W/O BHARATBHAI
LILABHAI VALAND
Versus
BHARATBHAI LILABHAI VALAND

Appearance:
MS ROMA I FIDELIS(3529) for the Applicant(s) No. 1
Z L KHAN(7966) for the Opponent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 20/02/2020

ORAL ORDER

1. Rule.

2. Present application has been filed by the applicant with a prayer to

transfer Family Suit No.218 of 2018 from the Court of the Principal

Judge, Family Court, Nadiad to Family Court, Deesa.

3. Heard learned advocate for the applicant.

4. It is submitted by learned advocate for the applicant that the

applicant has been residing in Deesa with her family and it is very

difficult to continue the said litigation from Deesa. It is further submitted

that the applicant is having four years old minor son and the applicant

will have to travel to Nadiad on every date in the matter which is 225 km.

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C/MCA/158/2019 ORDER

and it would cause unnecessary to the applicant and her minor son. It is

further submitted that the applicant has studied till 7th Standard and is

poor having no source of her independent income and already depending

upon her brother. It is further submitted that if the Family Suit is

transferred to Deesa, it will be very convenient for the applicant to

represent her case as the applicant has also preferred an application for

restitution of conjugal rights before the Family Court, Deesa. Hence, it is

requested by her to allow this application by transferring Family Suit

No.218 of 2018 from the Court of the Principal Judge, Family Court,

Nadiad to Competent Court at Deesa.

5. Though notice was served upon the respondent and advocate was

engaged by him, on 03.10.2019, advocate appearing from the respondent

sought adjournment on the ground that he would be retiring from the

matter and had also communicated to the respondent on 01.10.2019 that

he would not be attending the proceedings of present application. This

Court, on 03.10.2019, passed the following order:

“1. On the last occasion, learned advocate Mr.Z.L.Khan for the
opponent has sought adjournment on the ground that he would
be retiring from the matter.

2. In view of the aforesaid statement, learned advocate for the
opponent has submitted that he has already communicated to the
opponent on 01.10.2019 that he would now not be attending the
proceedings of the present application.

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C/MCA/158/2019 ORDER

3. Learned advocate Ms.Roma Fidelis for the applicant has
submitted that the opponent is not conducting the matter over
here and proceeding with the matter before the trial court. She
has submitted that the trial court has kept the proceedings of
Family Suit No. 218 of 2018 in the next week.

4. Looking to the attitude of the opponent, it would be apposite to
stay further proceedings of Family Suit No. 218 of 2018, pending
before Principal Judge, Family Court, Nadiad, till the next date
of hearing.

5. The matter is kept on 18.10.2019. Direct service is permitted.”

6. Thereafter, on 18.10.2019, this Court passed the following order:

“Despite the address given by the learned advocate for the opponent
that there was a note for withdrawing the name as an advocate from the
present proceedings and he has already communicated to the opponent
on 1st October, 2019 that he would now not be attending the
proceedings of the present application, no such reply has been filed.

Issue Rule returnable on 29th November, 2019. It will be open for the
opponent to serve the notice of Rule by way of R.P.A.D. at the cost of
the applicant, over and above regular mode of service.

Ad-interim relief granted vide order dated 3rd October, 2019 shall
continue till the final disposal of this application.”

7. From the records, it appears that the Principal Judge, Family Court,

Kheda at Nadiad has forwarded a letter dated 21.01.2020 along with the

endorsement of the bailiff concerned that notice was duly served to the

respondent. Signature of the respondent was also received by the bailiff

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C/MCA/158/2019 ORDER

concerned on 03.01.2020. Learned advocate for the applicant has also

produced track records and xerox copy of the RPAD sent to the

respondent. Track records seems that item delivery was confirmed. Both

the documents are taken on record. When the matter was taken up for

hearing, nobody has appeared on behalf of the respondent to contest the

application. It appears that present applicant has filed a petition under

Section 9 of the Hindu Marriage Act being HMP No.61 of 2018 for

restitution of conjugal rights at Deesa and the respondent has filed a

divorce petition being Family Suit No.218 of 2018 before the Principal

Judge, Family Court, Nadiad. As per the submissions made by learned

advocate for the applicant, the applicant is staying at Deesa with her

brother having four years old minor son and she have to travel from

Deesa to Nadiad on every occasion in the matter. The distance between

Deesa to Nadiad is approximately 225 km. (one way) and it would cause

unnecessary hardship to the applicant and her minor son. As per the

averments, the applicant has no source of independent income and

depending upon her brother. If Family Suit No.218 of 2018 preferred by

the respondent is transferred from Nadiad to Deesa, no convenient would

be caused to the respondent in comparison to present applicant. A cost of

travelling to Nadiad would be one of the factor for accepting the prayers

of present applicant. It further appears that as per the submissions of

learned advocate for the applicant the applicant is staying with her

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C/MCA/158/2019 ORDER

brother and depending on him and her brother is bearing the expenses to

present applicant. Under the circumstances, prayer made by present

applicant requires consideration, and therefore, present application

deserves to be allowed.

8. In view of the above observations, Family Suit No.218 of 2018 be

transferred from the Court of the Principal Judge, Family Court, Nadiad

to the Competent Court of Deesa. Accordingly, present application is

allowed. Rule is made absolute accordingly.

(B.N. KARIA, J)
rakesh/

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