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Rekhaben Kiranbhai Bariya vs Kiranbhai Kanubhai Bariya on 16 March, 2020

C/MCA/1172/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/MISC. CIVIL APPLICATION NO. 1172 of 2019

REKHABEN KIRANBHAI BARIYA
Versus
KIRANBHAI KANUBHAI BARIYA

Appearance:
CHHATRADHARI G PASI(8891) for the Applicant
VASIMRAJA A KURESHI(8609) for the Applicant
NOTICE SERVED BY DS(5) for the Opponent

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 16/03/2020

ORAL ORDER

1. By way of present application, present applicant is

seeking transfer of the proceedings of Criminal Misc. Application

no. 31 of 2019 preferred by the respondent ­ husband under

Guardian and Wards Act, pending with Additional District Court,

Chhota Udepur to competent Court at Vadodara, as the present

applicant is residing at Vadodara with her parents.

2. The brief facts of the case, as could be gathered from

the memo of the application, are required to be set­out as under :­

2.1 The marriage of the present applicant was solemnized

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C/MCA/1172/2019 ORDER

with the present respondent on 24th April 2011 as per the Hindu

rites and rituals at Vadodara and after that the present applicant

was residing with her husband.

2.2 Thereafter, out of the wedlock with the respondent, the

present applicant delivered two baby girls. However, it is stated

that at during the pregnancy, she was subjected to physical and

mental cruelty by the respondent – husband and his in­laws. It is

stated that the in­laws were not taking care of the present

applicant. Due to the harassment, present applicant hospitalized at

Vadodara and during that period also the in­laws were not taking

care of the applicant.

2.3 It is stated that demand of dowry and harassment was

also made by the respondent – husband during the pregnancy of

the present applicant. Thereafter, the present applicant left her

matrimonial home and went to her parents’ home at Vadodara.

2.4 It is further submitted that the applicant has no source

of income for her livelihood. An application for maintenance was

also filed by the present applicant in which learned Family Court,

Vadodara has awarded maintenance of Rs.5,000/­. However, the

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C/MCA/1172/2019 ORDER

respondent has never paid a single rupee towards maintenance and

therefore, it is very difficult for the present applicant to attend the

proceedings at Chhota Udepur.

2.5 It is further stated in the application that on each and

every adjournment before the Chhota Udepur the applicant has to

travel there to attend the proceedings filed by the respondent –

husband, which is very difficult for her. Being a lady and mother of

two infants, it is not possible for the present applicant to travel to

Chhota Udepur to attend the proceedings.

2.6 The present applicant is residing at Vadodara with her

parents. The distance between Chhota Udepur to Vadodara is

about 118 kms. one way. Hence, she filed the present application

seeking transfer of the proceedings being Civil Misc. Application

no.31 of 2019 filed by the respondent – husband pending before

the Chhota Udepur.

3. The cause list shows that notice was served to the

respondent. The present applicant has also filed service affidavit

stating that on 18th January 2020 at about 12:03 pm, the

respondent was personally served notice and signature was

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C/MCA/1172/2019 ORDER

obtained on original writ. The papers also shows that notice was

duly served to the opponent and concerned bailiff has also filed his

report regarding service of the notice on the respondent. However,

though notice was served to the respondent, he has not bothered to

appear before this Court to contest this application.

4. Learned advocate appearing for the applicant submitted

that present applicant is residing along with her parents at

Vadodara and it is difficult for her to attend the proceedings at

Chhota Udepur. It is also submitted that the present applicant does

not have any source of income for her livelihood.

5. It is further submitted that the present applicant has

filed application under Section 125 of the Criminal Procedure

Code, 1973 for maintenance before the Hon’ble Family Court at

Vadodara being Criminal Misc. Application no.553 of 2019. The

same was allowed and the respondent was ordered to pay

Rs.5,000/­ per month as maintenance to the present applicant.

Except that, the present applicant has no income. However, the

respondent has not paid any amount towards maintenance as

awarded by the Family Court, Vadodara.

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C/MCA/1172/2019 ORDER

6. It is submitted that the respondent – husband has filed

application under Section 25 of the Guardian and Wards Act before

the Addl. District Judge, Chhota Udepur. It is also submitted that

the applicant being a lady, having responsibility of her infant

daughters, it is very difficult for her to travel 118 kms. one way to

Chhota Udepur to attend the proceedings from Vadodara, where

she resides with her parents. It is further submitted that there are

other proceedings which are pending at Vadodara against the

respondent and therefore no prejudice or harm is caused to the

respondent if the present application is allowed.

7. No one appears for the respondent – husband.

8. Having considered the facts of the case, submissions

made by the learned advocates appearing for the applicant, it

appears that the applicant is staying at Vadodara and she has

preferred an application u/s.125 of the Code of Criminal Procedure

of maintenance being Criminal Misc. Application no.553 of 2019

before the Family Court, Vadodara. It is stated by the learned

advocate for the applicant that in the aforesaid application

preferred by the present applicant, final order was passed and

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C/MCA/1172/2019 ORDER

maintenance was awarded. Thereafter, no amount of maintenance

was paid. Recovery application under Section 125 is also preferred

by the applicant. It also appears that respondent is also preferred

Criminal Misc. Application no.31 of 2019 before the learned Addl.

District Judge, Chhota Udepur under Section 25 of the Guardian

and Wards Act. The distance between Vadodara and Chhota

Udepur is approximately 118 kms. one way. The petitioner being a

lady would suffer more inconvenience and hardship to attend the

proceedings at Chhota Udepur initiated by the respondent –

husband under Section 25 of the Guardian and Wards Act.

Therefore, it is desirable to transfer matrimonial litigation at the

place where the wife is residing.

9. In the result, the prayer made by the present applicant

is allowed, Civil Misc. Application no.31 of 2019, filed by the

respondent – husband, pending before the learned District Court,

Chhota Udepur shall be transferred for adjudication to the Family

Court at Vadodara.

(B.N. KARIA, J.)
AMAR RATHOD…

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