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Smt. Eshika Bhattacharjee vs Sri Somnath Bhattacharjee on 21 November, 2019

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21.11.19

Srimanta
List – S/L
Sl. No. 02
Ct. No. 17
C. O. 1160 of 2019

Smt. Eshika Bhattacharjee

-Vs.-

Sri Somnath Bhattacharjee

Mr. Amitava Mukherjee, Adv.,
Mrs. Munmun Dubey, Adv.,
Mrs. Arpita Saha, Adv.,
Ms. Ankita Ghosh, Adv.,
…for the petitioner.

Mr. Ambar Nath Banerjee, Adv.,
Mrs. Leena Panja, Adv.

…for the opposite party.

The wife/petitioner has prayed for transfer of Matrimonial Suit No. 30 of
2019 pending before the learned Additional District Judge, Katwa, Purba
Burdwan to the Court of the learned Additional District Judge at Barrackpore,
North 24-Parganas on the following grounds:-

(i) Marriage of the petitioner was solemnized with the opposite
party according to Hindu Rites and Ceremonies on 11th
December, 2011.

(ii) In the said wedlock the petitioner gave birth to a female child
on 13th January, 2014. Since after marriage and specially after
the birth of the child, the petitioner was subjected to physical
and mental torture, illegal demands for money from her
paternal home were made by her husband and other
matrimonial relations and when the petitioner refused to accede
to their demand, she was subjected to physical and mental
torture.

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(iii) Finding no other alternative, the petitioner left her matrimonial
home with her father on 24th October, 2015.

(iv) The petitioner has been residing at Dum Dum at her father’s
residence.

(v) She filed an application under Section 125 of the Code of Civil
Procedue which is pending before the learned Additional Chief
Judicial Magistrate at Barrackpore for disposal.

(vi) In the meantime, the petitioner received notice of Matrimonial
Suit No. 30 of 2019 filed by the opposite party for restitution of
conjugal rights under Section 9 of the Hindu Marriage Act.

It is submitted by the petitioner that the Court of Additional District
Judge at Katwa where the matrimonial suit was filed is at a distance of about
100 K.Ms. in one way from Dum Dum. Moreover, there is no direct
communication to reach Katwa from Dum Dum. Secondly, the petitioner’s
child is now aged about five years. It is not possible for her to attend the
Court of Trial leaving her minor child. The parents of the petitioner are aged
and they are not in a position to accompany her to the Court of Trial. So, the
instant application.

The opposite party has filed an affidavit-in-opposition controverting
entire allegation of physical and mental torture allegedly inflicted upon the
petitioner by him and his matrimonial relations. It is the specific case of the
opposite party that the petitioner voluntarily left her matrimonial home. The
father of the petitioner is a retired police personnel and he is threatening the
opposite party with dire consequence for the marital discord between him and
his wife. He was also once threatened publicly by the father of the petitioner
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and his colleagues. The petitioner apprehends threat of his life if the suit is
transferred to Barrackpore. Moreover, it is submitted by the learned Advocate
for the opposite party that the petitioner is regularly receiving a sum of
Rs.7,000/- towards maintenance for herself and her daughter. Therefore, the
petitioner cannot claim financial hardship as a ground for transfer of the
matrimonial suit.

Learned Advocate for the opposite party further proposes that the
opposite party is ready to bear all cost of transportation and stay of the
petitioner on the date of hearing of the said matrimonial suit at Katwa.

Referring to a decision of the Hon’ble Supreme Court in the case of
Neelam Bhatia -Vs.- Satbir Singh Bhatia reported in (2004) 13 SCC 436.
It is submitted by the learned Advocate for the opposite party that the
petitioner should not be encouraged in her activity of forum shopping by filing
an application under Section 24 of the Code of Civil Procedure.

The petitioner has also filed an affidavit-in-reply controverting the
allegation of threat to the opposite party by her father and her colleagues and
reiterating the statement made out in the petition under Section 24 of the
Code of Civil Procedure.

I have heard the learned Counsels for both the parties. I have also
perused the averments made by the petitioner and the opposite party in their
petition, affidavit-in-opposition and affidavit-in-reply. It is true that while
disposing of an application under Section 24 of the Code of Civil Procedure
arising out of the matrimonial proceeding, Court should primarily consider the
inconvenience of the petitioner. The decision of the Hon’ble Supreme Court in
Kishore Pardeshi reported in 2005 (5) SCC 237 may be relied on in support
of my observation. At the same time the Hon’ble Supreme Court in Neelam
Bhatia (Supra) has sounded a word of caution that forum shopping should not
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be permitted in the name of an application under Section 24 of the Code of
Civil Procedure. From the averments of the parties, it is ascertained that the
petitioner instituted a criminal case under Section 498A Indian Penal Code at
Katwa. The said case is pending before the learned Additional Chief Judicial
Magistrate at Katwa. The petitioner’s case under Section 125 of the Criminal
Procedure Code is also pending at Barrackpore.

Considering the submission made by the learned Counsels for the
parties, I am of the view that if the instant matrimonial suit is transferred to
Kalna in the district of Purba Burdwan, inconvenience of both the parties can
be somehow mitigated. Kalna is situated at a distance of about one hour’s
journey from Dum Dum. There is direct train connection from Dum Dum to
Kalna. The opposite party can also conveniently reach Kalna from his place of
work either at Howrah or Liluah.

For the reasons stated above, the instant application is allowed on
contest without cost.

Let Matrimonial Suit No. 30 of 2019 now pending before the Court of the
learned Additional District Judge, Katwa be transferred to the Court of the
learned Additional District Judge, Kalna for trial and disposal.

Let a copy of this order be sent to the learned Additional District Judges
at Katwa and Kalna through the Department for information and compliance of
the order.

The instant application is thus disposed of on contest.

(Bibek Chaudhuri, J.)

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