IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
The Hon’ble JUSTICE BIBEK CHAUDHURI
CO 1166 of 2018
Smt. Deepika Gupta
Sri. Shailesh Gupta
For the petitioner/wife: Mr. Aniket Mitra, Adv.
For the O.P/husband: Mr. S. Bera, Adv.
Heard on: August 22, 2019.
Judgment on: September 17, 2019.
BIBEK CHAUDHURI, J. : –
This is an application under Section 24 of the Code of Civil Procedure
(hereafter “CPC”) filed by the wife/petitioner praying for transfer of Matrimonial
Suit No.89 of 2015 instituted by the opposite party/husband pending before the
14th Court of the Learned Additional District Judge to the Court of Learned
District Judge, Howrah.
2. The petitioner is a legally married wife of the opposite party. The opposite
party filed a matrimonial suit under Section 9 of the Hindu Marriage Act claiming
restitution of conjugal rights against the petitioner before the learned District
Judge, South 24 Parganas at Alipore. The said suit was subsequently transferred
to 14th Court of the learned Additional District Judge at Alipore.
3. The petitioner entered appearance in the said suit and on 5th May, 2016
she filed an application under Section 24 of the Hindu Marriage Act praying for
alimony pendente lite for herself and her minor child which was registered as
Misc Case No.2169 of 2016. By an order dated 25th January, 2017, the learned
trial judge passed an order upon the application under Section 24 of the Hindu
Marriage Act directing the opposite party to pay alimony pendente lite at the rate
of Rs.3000/- for the petitioner and Rs.2000/- for their minor son, total being
Rs.5000/- per month payable within 10th of each succeeding month. The
opposite party, however, is very irregular in making payment of alimony. In the
mean time, the petitioner has filed a suit for dissolution of marriage against the
opposite party by a decree of divorce before the learned District Judge, Howrah
which was registered as Matrimonial Suit No.2941 of 2016. The said suit was
subsequently transferred to the Court of learned Additional District Judge, 1st
Court at Howrah for disposal and renumbered as Matrimonial Suit No.986 of
2016. It is also pleaded by the petitioner that upon her complaint a proceeding
under Section 12 read with Sections 13/Section18/Section19/Section20/Section22 of the Protection of
Women from SectionDomestic Violence Act was registered against the opposite party as
Misc Case No.419 of 2016 and the same is pending before the learned Chief
Judicial Magistrate at Howrah. Police has also registered P.S Case No.142 of
2016 under Section 498A/Section406 of the Indian Penal Code against the opposite
party. The opposite party, on the other hand has filed an application under the
Guardians and SectionWards Act praying for custody of their minor child.
4. Under such circumstances, for the sake of convenience the petitioner has
prayed for transferring the Matrimonial Suit No.89 of 2015 to the Court of the
learned District Judge at Howrah for trial and disposal.
5. Opposite party has not filed any affidavit-in-opposition against the
application under Section 24 of the CPC.
6. On perusal of the order book it is found that a Coordinate Bench of this
Court by an order dated 10th December, 2018 referred the dispute between the
parties to the High Court Mediation Committee for conciliation. However, the
attempt of mediation failed. Learned Advocate for the opposite party submits that
the opposite party was compelled to file an application under Guardians and
SectionWards Act before the learned District Judge, Howrah as the said Court has got
the jurisdiction to try such case. It is not disputed that the minor child of the
petitioner and the opposite party presently resides with the petitioner at Howrah.
Therefore, the Principal Code of Civil Procedure of the District of Howrah has the
jurisdiction to entertain an application under Guardians and SectionWards Act. As
because the opposite party has filed the said case under Guardians and SectionWards
Act at Howrah it cannot be said that the opposite party submitted himself to the
jurisdiction of Howrah.
7. On the contrary, the marriage of the petitioner with the opposite party was
solemnized at a place within P.S Harestreet, Calcutta. After marriage the
petitioner and the opposite party live together as husband and wife at Kasba
within the jurisdiction of Alipore Court. Therefore, the petitioner filed a suit for
restitution of conjugal rights at Alipore.
8. Learned Advocate for the opposite party further submits that the petitioner
has not pleaded specifically the case of inconvenience caused to her to contest
Matrimonial Suit No.89 of 2015 at Alipore. Merely because some other
proceedings and cases are pending against the opposite party at Howrah, the
instant Matrimonial Suit No.89 of 2015 cannot be directed to be transferred to
the court of the learned District Judge, Howrah.
9. I have already recorded that Matrimonial Suit No.89 of 2015 is a suit for
restitution of conjugal rights. Subsequently the petitioner filed a suit for
dissolution of marriage by a decree of divorce against the opposite party being
Matrimonial Suit No.2941 of 2016, renumbered as Matrimonial Suit No.986 of
2016 and the same is pending before the learned Additional District Judge 1st
Court at Howrah. Needless to say that both the suits for restitution of conjugal
rights and for dissolution of marriage ought to be heard and disposed of
analogously to avoid conflicting decision.
10. It is on record that at least three other proceedings instituted by the
petitioner and one case filed by the opposite party under Guardians and SectionWards
Act are pending in Howrah. The opposite party has not pleaded his inconvenience
to attend Howrah Court. On the contrary, it is pleaded by the petitioner that in
the wedlock between her and opposite party, she gave birth to a baby who is now
aged about five years. The petitioner looks after her child. The opposite party has
not controverted the allegation of the petitioner that he is very irregular in
payment of alimony pendente lite.
11. If the comparative convenience and inconvenience is assessed petitioner’s
inconvenience will certainly get prudence over the inconvenience of the opposite
party if any. In support of my observation, I may rely on the decisions of Rajani
Kishor Pardeshi vs. Kishor Babulal Pardeshi reported in (2005) 12 SCC 237,
Smita Sharma vs. Vivek Sharma reported in (2004) 13 SCC 607 and Pampa
Banerjee vs. Mridul Banerjee reported in 2016 (4) CHN (Cal) 80.
12. In view of the above discussion the application under Section 24 of the CPC
is allowed on contest, however, without cost.
13. The Matrimonial Suit No.89 of 2015 presently pending before the 14th
Court of the learned Additional District Judge, Alipore be transferred to the 1st
Court of the learned Additional District Judge, Howrah.
14. The learned Additional District Judge, Howrah is directed to try
Matrimonial Suit No.89 of 2015 analogously with the Matrimonial Suit No.986 of
2016. Let a copy of this order be sent to the 14th Court of the learned Additional
District Judge, Alipore and the learned Additional District Judge, 1st Court at
Howrah through the respective learned District Judges of the respective Districts
for information and compliance.
Urgent certified website copies of this judgment, if applied for, be supplied
to the parties subject to compliance with all requisite formalities.
(Bibek Chaudhuri, J.)