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Rima Saha vs Subhradip Saha on 25 February, 2019

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25.02.2019

[02 04]
Ct.25
suman

C.O. 3901 of 2018
With
C.O. 3900 of 2018

Rima Saha
Vs.

Subhradip Saha

Mr. Monish Sen
…for the petitioner

Mr. Jyoti Prakash Chatterjee
…for the opposite party

C.O. 3900 of 2018 is an application under Section 24 of the

Code of Civil Procedure filed by the wife /petitioner praying for

transfer of Matrimonial Suit No.94 of 2018 filed by her husband

from Court of the learned Additional District Judge at Barrackpore

to the Court of learned Additional District Judge at Durgapur.

C.O. 3901 of 2018 is another application under the same

provision of the statute filed by the petitioner praying for transfer of

the Act VIII Case No.172 of 2018 from the Court of the learned

District Judge, North 24 Parganas at Barasat to the Court of the

learned Additional District Judge, Durgapur.
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Since the petitioner has pleaded the same facts and

circumstances in support of her prayer to transfer the above

mentioned two cases, I propose to dispose of both the civil orders

in a common judgment.

On facts it is not disputed that the petitioner is the legally

married wife of the opposite party. It is also not disputed that in

the wedlock between the petitioner and the opposite party a female

child is born who is now aged about 6 years. Admittedly further,

the petitioner on being driven out from her matrimonial home filed

a case under Section 498A and other penal provisions of the Indian

Penal Code at Durgapur Court. She also filed another proceeding

under various provisions of Protection of Women from Domestic

Violence Act, 2005 in the Court of learned Additional Chief Judicial

Magistrate at Durgapur. In both the said two cases the opposite

party entered appearance and obtained orders of bail. So, the

opposite party will have to appear before the learned A.C.J.M.,

Durgapur on various dates when the above mentioned two cases

will be fixed for hearing.

It is needless to say that in accordance with the provision of

Section 9 of the Guardians and Wards Act, 1890 an application for

guardianship and custody will be filed in the principal Court of Civil

Jurisdiction under whose jurisdiction the child resides. There is no
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dispute that the child is now residing with her mother at Durgapur.

Therefore, Act VIII Case No.172 of 2018 ought to have been filed

before the learned District Judge, Paschim Burdwan.

Without going to the question as to why the learned District

Judge, North 24 Parganas has the jurisdiction to try Act VIII Case

No.172 of 2018, I like to record that in a proceeding under

Guardians and Wards Act a child is required to be produced in Court

on the date / dates fixed for his /her appearance for the purpose of

visitation. It will cause immense hardship for a child of six years to

attend Barasat Court from Durgapur for the purpose of visitation.

Mr. Jyoti Prakash Chatterjee, learned advocate for the

opposite party refers to a decision of the Supreme Court in the case

of Anindita Das Vs. Srijit Das reported in (2006) 9 SCC, 197

where Supreme Court has given a caution observing that the

provision of Section 24/25 of the C.P.C., as the case may be, is

being misused by the wife /petitioner. Therefore, each and every

case should be disposed of on its peculiar fact and circumstances

without taking resort to some general proposition that convenience

of the wife should be prime consideration while disposing of an

application under Section 24 of the C.P.C. arising out of a

matrimonial suit.

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I have dealt with the issues involved in both the cases under

consideration from their peculiar facts and circumstances. First,

the opposite party will have to attend the criminal proceedings

instituted against him at Durgapur. Secondly, it will cause

tremendous hardship for a minor child of about 6 years to attend

Barasat Court from Durgapur in Act VIII Case No.172 of 2018.

Thirdly, relative inconvenience of the petitioner being weaker sex in

attending Barasat Court would be more than the opposite party.

For the reasons stated above I am of the view that both the

applications under Section 24 of the C.P.C. deserve favourable

consideration. Accordingly, the applications under Section 24 of

the C.P.C. filed by the petitioner in both the civil orders are allowed

on contest, however, without cost. Matrimonial Suit No.94 of 2018

and Act VIII Case No.172 of 2018 be transferred from the Court of

learned Additional District Judge, Barrackpore and learned District

Judge, Barasat respectively to the Court of the learned District

Judge, Paschim Burdwan.

Urgent photostat certified copy of this order, if applied for,

be made available to the parties upon compliance of the requisite

formalities.

(Bibek Chaudhuri, J.)
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