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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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