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Smt. Deepika Gupta vs Sri. Shailesh Gupta on 17 September, 2019

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

The Hon’ble JUSTICE BIBEK CHAUDHURI

CO 1166 of 2018

Smt. Deepika Gupta
Vs.
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. : –

1.

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.)

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