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Smt. Kuntala Ghosh vs Sri Ashok Krishna Ghosh on 5 September, 2019

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8 05.09.2019 CO 4214 of 2018
AN Ct. No. 25
Smt. Kuntala Ghosh

-vs.-

Sri Ashok Krishna Ghosh

Mr. Avik Ghatak
Mr. Salman Hasan
… for the petitioner

Affidavit of service filed be kept with the record.

It is submitted that the Mat. Suit No. 176/2018 now

pending before the Court of the learned District Judge, Chinsurah,

Hooghly filed by the opposite party praying for dissolution of marriage

by decree of divorce, is sought to be transferred to the Court of the

learned Additional District Judge, Katwa, Purba Burdwan by invoking

the provisions of Section 24 of the Code of Civil Procedure.

At the outset, I like to record that as directed by this

court, notice of the instant proceeding was sent to the opposite party,

it is ascertained from the affidavit of service that the opposite party

duly received the notice but he has not turned up. Therefore, I have

no other alternative but to take up hearing of the instant matter in

presence of the learned counsel appearing on behalf of the petitioner.

It is submitted that transfer of the Mat. Suit No.

176/2018 is sought for by the petitioner/wife on the following

grounds:

i) Distance between Katwa and Chinsurah is about 120

kms. in one way. The petitioner will have to travel approximately

240/250 kms. in both the ways if she is directed to contest the said

suit at Chinsurah, Hooghly;

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ii) Except her old ailing father, there is no other person to

accompany her from Katwa to Chinsurah, it will not only cause

hardship to her but also to her father;

iii) The petitioner was driven out from her matrimonial

home sometime in the month of March, 2018, she took her shelter at

her paternal home at katwa. She initiated a proceeding under

Section 125 of the Code of Criminal Procedure claiming maintenance

allowance for herself against her husband. A Criminal case under

Section 498A of the Indian Penal Code and other cognate penal

provisions is also pending at Katwa Court against the opposite

party/husband and other matrimonial relations of the petitioner;

iv) The petitioner appeared before the learned District

Judge, Chinsurah, Hooghly in Mat. Suit No. 176/2018 on 15.09.2018

but in the afternoon, she was threatened by her husband and some

unknown persons of dire consequences, if she wants to contest the

said suit.

So is the application for transfer of the said Matrimonial

Suit.

Mr. Avik Ghatak, the learned counsel appearing on behalf

of the petitioner placed reliance on the following judgments in support

of his contention in the case of SectionMandeep Kaur vs. Kamaljeet Singh

reported in (2004) 13 SCC 592 and Rajani Kishor Pardeshi vs. Kishor

Babulal Pardeshi reported in (2005) 12 SCC 237 and submitted that

inconvenience of the petitioner in carrying out a matrimonial

proceeding is the prime consideration while adjudicating an

application under Section 24 of the Code of Civil Procedure and the

convenience of the wife is to be preferred over the convenience of the
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husband.

It is urged by Mr. Ghatak that the petitioner has no

source of income. Her application for maintenance allowance has not

yet been disposed of. The opposite party has failed and neglected to

pay any amount towards subsistence allowance of the petitioner.

Considering the financial background of the petitioner, the said

matrimonial suit ought to be transferred to Katwa where the

petitioner resides.

Mr. Ghatak also refers to another decision of Karnataka

High Court in the case of SectionC. S. Shyamala vs. C. S. Srikantaiah

reported in AIR 1990 Kar 146. In the said decision, a matrimonial

suit was transferred to a place situated at a distance of about 69

kms. away taking into consideration the factual background of

human misery and lack of economic independence of the petitioner.

It is also submitted by the petitioner that a litigant cannot

freely conduct his/her case if he/she is threatened by his/her

adversary.

In the instant case, the petitioner had to lodge a G.D.

because she was harassed and threatened with dire consequences if

she attempted to contest the said Mat. Suit No. 176/2018 at

Chinsurah, Hooghly where the suit is now pending. In view of the

threat perception clearly pleaded by the petitioner, the said

Matrimonial suit ought to be transferred from Chinsurah to Katwa.

The opposite party husband has not come forward to

contest the instant application by refuting factual statement made by

the petitioner. Since the facts are not denied by the opposite party,

this court has no predicament to consider such factual background
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made by the petitioner on affidavit.

The petitioner has been residing at Katwa at her paternal

home. She has no source of income. She is now solely dependent

upon her old parents. Considering her economic background,

distance of Chinsurah Court from her present place of residence at

Katwa, pendency of two criminal proceedings at Katwa Court and

specific allegation of threat given to her by the opposite party when

she went to Chinsurah to contest the said suit, I am of the view that

the instant application deserves favourable consideration.

Accordingly, the said Mat. Suit No. 176/2018 pending

before the learned District Judge, Chinsurah, Hooghly be transferred

to the court of learned Additional District Judge, Katwa for trial and

disposal.

For the reasons stated hereinabove, the instant revisional

application under Section 24 of the Code of Civil Procedure is

disposed of.

A copy of this order be sent to the learned District Judge,

Chinsurah, Hooghly and the learned Additional District Judge, Katwa

for information and compliance with regard to transfer of the said

matrimonial suit through the Department forthwith.

There will be no order as to costs.

Urgent certified photostat copy of this order, if applied for,

shall be given to the parties as expeditiously as possible on

compliance of all necessary formalities.

(Bibek Chaudhuri, J.)

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