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Shila Chatterjee-vs-Tapan Chatterjee on 12 February, 2004

Calcutta High Court Shila Chatterjee-vs-Tapan Chatterjee on 12 February, 2004
Equivalent citations:2004 (3) CHN 376
Author: J Bhattacharya
Bench: J Bhattacharya

JUDGMENT

Jyotirmay Bhattacharya, J.

1. Two applications both under Section 24 of the Code of Civil Procedure; one for transfer of a divorce suit being Matrimonial Petition No. 31 of 2001 and another for transfer of guardianship proceeding being Misc. Case No. 220 of 2001, were filed by the wife petitioner before this Court. The application for transfer of Matrimonial Petition No. 31 of 2001 from the Court of 2nd Bench of the Family Court Calcutta to the Court of the learned District Judge at Alipore was registered as C.O. No. 2010 of 2001. The other application for transfer of Misc. Case No. 220 of 2001 from the Court of the Principle Judge, 1st Family Court, Calcutta to the Court of the learned District Judge at Alipore was registered as C.O. No. 9 of 2002.

2. Since the parties in both the applications are same and the grounds for transfer in both the applications are also similar to each other, I propose to dispose of both these applications analogously and by a common order.

3. In both the aforesaid applications, the wife petitioner prayed for transfer of the aforesaid suit and the proceeding both filed by the Husband/ Opposite Party on the following grounds :

Firstly, transfer was prayed for on the ground of convenience of the wife petitioner in attending the Alipore Court. The wife is staying at premises No. P/42, Ananda Pally, Pashupati Bhattacharjee Raod, P.S. Behala nearer to Alipore Court. Thus, since Alipore Court is nearer to her residence than the Family Court at Calcutta where the suit/proceeding are pending, it will be convenient for her to attend Alipore Court than attending Family Court, Calcutta for contesting the said suit and/or proceeding.

Secondly, the wife petitioner has filed an application under Section 125 of the Code of Criminal Procedure before the C.J.M. Alipore. The said proceeding, which was registered as Misc. Case No. 148 of 99 has since been transferred to the Court of the A.C.J.M. at Alipore. The husband is conveniently contesting the said proceeding at Alipore. Therefore, the husband/opposite party wilt not feel any inconvenience, if the said suit and the proceeding are transferred from the Family Court to the Court of the District Judge at Alipore.

Thirdly, the wife petitioner is unable to contest the said suit and the proceeding herself and Family Court normally does not permit engagement of lawyer by the parties for conducting their case. These are the three grounds on which the wife petitioner prays for transfer of the said suit and the proceeding as aforesaid from the Family Court to District Judge at Alipore.

4. The learned Advocate Ms. Roy appearing for the petitioner supported the petitioner’s prayer for transfer of the said suit and the proceeding as aforesaid on the aforesaid three grounds. The learned Advocate Ms. Roy submits that all these grounds are sufficient enough for transfer of the said suit and the proceeding as aforesaid. Ms. Roy further submits that the objection raised by the opposite party in his respective affidavits are not sound enough to oppose the petitioner’s prayer for such transfer. According to Ms. Roy the apprehension for influencing the Judge in Alipore Court by the wife’s relation there, if the suit/proceeding are transferred to Alipore Court, is baseless and without any foundation.

5. On the other hand Mr. Chatterjee, appearing on behalf of the husband opposite party vehemently opposed the prayer for such transfer. Mr. Chatterjee has pointed out from the affidavit-in-opposition filed by the opposite party herein that the wife has also filed a proceeding under Section 498A of the IPC in the Court of the Metropolitan Magistrate, 7th Court, Calcutta. The said proceeding has been registered as G. R. Case No. 3164 of 1998. The wife petitioner is conveniently proceeding with the said pending proceeding. Mr. Chatterjee further pointed out that no prayer for transfer of the said proceeding has ever been made by the wife petitioner. This shows that there is no inconvenience on her part in attending the Court of Metropolitan Magistrate at Calcutta. Mr. Chatterjee further contends that the Divorce Suit pending before the Family Court has progressed substantially and it has reached up to the stage of recording evidence. As such, at this stage of the proceedings, no useful purpose will be served by transferring the said suit and the proceeding from the Family Court to the Court of the learned District Judge at Alipore. Mr. Chatterjee further submits that engagement of lawyer in Family Court is not totally prohibited. Provision has been made in the Act itself for engagement of lawyer by a party under certain circumstances. Mr. Chatterjee submits that the wife petitioner never applied before the Family Court seeking leave to defend the suit by engaging Advocate. As such her claim in this regard is baseless.

6. Thus, after hearing the learned Advocates of the parties and after considering the materials on record, I fully agree with the submissions made by Mr. Chatterjee. I find that when the wife petitioner is conveniently proceeding with her application under Section 498A of the I.P.C. pending before the Metropolitan Magistrate Court at Calcutta, she cannot feel any inconvenience in contesting the suit and the proceeding filed by her husband in the Family Court which is also located in the same premises where the wife’s proceeding under Section 498A of the I.P.C. is continuing.

7. I also like to mention here that the difference of distance between the Court where the suit/proceeding are now pending and the Court where these suit/proceeding are sought to be transferred, is negligible particularly because of the fact that the communication with both the Courts from the place of the petitioner’s residence is equally sufficient. As such the first ground for transfer as aforesaid is not accepted.

8. With regard to the second ground as indicated above, I also cannot agree with the submission of Ms. Roy learned Advocate for the petitioner, as I feel that no transfer can be allowed on the said ground along. The husband will not feel any inconvenience, if the suit is transferred to the place of the wife’s choice, is no ground at all for effecting such transfer. It is true that the husband is contesting the proceeding under Section 125 of the Criminal Procedure Code at Alipore, but he has to do this because he has no choice of forum in this regard. But that cannot be a ground for transfer of the husband’s suit/proceeding from the Family Court, Calcutta to the Court of the District Judge at Alipore as the husband has his exclusive choice of forum under the law which choice should not be lightly interfered with on such a fanciful desire of the wife petitioner.

9. Now I deal with the third ground in support of the wife’s claim for transfer. When this Court wanted to know from Ms. Roy learned Advocate for the petitioner as to whether the petitioner ever prayed for Court’s permission to defend her case through lawyer or not, she fairly submits that the petitioner has not, of course, made such a prayer before the Family Court.

10. As such in my considered view, the ground for transfer on that score is not at all convincing. Furthermore, if transfer is to be allowed on such ground, the entire purpose of the Family Courts Act will be frustrated and the establishment of the Family Court under the said Act will be meaningless. Furthermore, since admittedly no application seeking leave to defend her case through lawyer has been filed by the wife/petitioner as yet, the petitioner’s claim in this regard is premature. Thus, the said ground also fails.

11. In such view of the matter, I find no reason to transfer the aforesaid suit being Matrimonial Petition No. 31 of 2001 and/or proceeding being Misc. Case No. 220 of 2001 from the respective benches of the Family Court at Calcutta to the Court of the learned District Judge at Alipore.

12. Accordingly, both the applications for transfer being C.O. No. 2010 of 2002 and C.O. No. 9 of 2002 are rejected however without any order as to costs.

13. The order passed on this application will also govern the other civil order being C.O. No. 9 of 2002.

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