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Smt. Mithu Chakraborty Nee … vs Sri Suman Chakraborty on 17 April, 2019

In the High Court at Calcutta
Civil Revisional Jurisdication
Appellate Side

Present:-

The Hon’ble Justice Subhasis Dasgupta.

CO. No. 2359 of 2017

Smt. Mithu Chakraborty nee Banerjee
Vs.
Sri Suman Chakraborty

For the petitioner : Mr. Subrata Bhattacharya, Adv.
Mr. Indranuj Dutta, Adv.
Mr. Suvajit Ghosh Dastidar, Adv.
Ms. Kankana Das, Adv.

For the respondent : Mr. Sabyasachi Mukherjee, Adv.

Judgment : 17.04.2019

Subhasis Dasgupta, J:-

This is an application under Section 24 of the Code of Civil

Procedure praying for transfer of Misc. Case No. 92 of 2017 under

Section 25 of the Guardians and Wards Act, 1890 filed by the

husband/opposite part, now pending before the Court of the learned

Additional District Judge at Barrackpore, North 24 Parganas to the Court

of the learned Additional District Judge at Durgapur, Burdwan.

Learned advocate for the petitioner submitted that few days after

marriage of the petitioner with opposite party, the wife/petitioner was

put to suffer torture, oppression, cruelty in the hands of her husband
2

over a demand of money and other dowry items. Somehow, the wife

forbore such humiliation and oppression with a high hope for future

adjustment, but ultimately it was turned out to be an ideal exercise.

The wife/petitioner was ultimately driven out from her-in-law’s house.

Under a compelling circumstances, petitioner/wife had to take shelter in

her paternal house at Durgapur. Two children were admittedly borne

out to petitioner/wife out of their wedlock. The wife, for having had no

income of her own, filed a proceeding under Section 125 Cr. P.C before

the Court of learned Magistrate, Durgapur with a prayer for maintenance

under Section 125 Cr. P.C., alleging torture, neglect and refusal against

her husband, as embodied in Section 125 Cr. P.C. The

husband/opposite party participated in the proceeding under Section

125 Cr. P.C. Ultimately the proceeding, under Section 125 Cr. P.C, was

disposed of by directing husband to pay maintenance at the rate of

Rs.2000/- per month to the wife, and Rs.1000/- each for the two minor

children.

Petitioner/wife has now been passing her days under the charity of

her parents. For the realisation of maintenance due, the wife/petitioner

had to initiate execution proceeding against her husband.

The Barrackpore, where the husband already initiated Misc. Case

No. 92 of 2017 under Section 25 of the Guardians and Wards Act, 1890

praying for custody of the children, according to petitioner/wife, is

situated at distance of about 200 KM away from Durgapur. The
3

petitioner/wife was submitted to be a heart patient, and it was not

advisable for her to go alone out side without the help of any persons.

The petitioner wanted to contest the petition praying for custody of

the children, but in order to contest the case, she was supposed to

undertake journey involving physical hazards, together with the financial

expenses needed therefor, which were not at all conducive to her at the

moment to come and join in the proceeding at Barrackpore Court after

undertaking a train journey involving 200 KM away from Durgapur.

Upon consideration of the physical harassment together with the

financial expenses needed therefor, the petitioner sought for transfer of

the proceeding, registered in connection with Misc. Case No. 92 of 2017

praying for custody of children under the Guardians and Wards Act from

Barrackpore Court to Durgapur Court.

The opposite party/husband contested the case submitting that

still the husband had his desire to take back his wife and resume

conjugal life. Thus in order to give effect to his desire, he already filed a

suit for restitution of conjugal right, in which an ex party decree was

passed in his favour. It is the case of the husband/opposite party that

he was employed on a daily wage basis in a jute mill, and in the event he

was made to participate in the proceeding under Guardians and Wards

Act at Dugrapur Court, there would be a fair chance of loosing his job,

and further he will be rendered without any employment. According to

husband/opposite party, Barrackpore Court is not far off from
4

Durgapure, which is well connected both by railways and roads involving

a journey of less than three (3) hours. It was contended that

unnecessarily he would be put to face a lot of inconvenience, if he is

made to attend Durgapur Court in connection with this proceeding upon

transferring the case on the prayer of petitioner. Thus, the opposite

party/husband proposed for dismissal of the instant proceeding under

Section 24 of the CPC.

Admittedly there was a matrimonial discord between the parties.

The undenying position is that for their matrimonial differences, the

wife/petitioner has been residing in her father’s house at Durgapur

under a compelling circumstances, and two minor children were borne

out of their wedlock. An order of maintenance was passed in favour of

the wife/petitioner under Section 125 Cr. P.C by the Court of learned

Magistrate Durgapur granting maintenance to wife and two minor

children as well. That for the realisation of maintenance due, an

execution proceeding had to be initiated. The proceeding under Section

125 Cr. P.C was disposed of in a contested manner, where there was

sufficient participation by the OP/husband meaning thereby that the

opposite party/husband did not allow the proceeding to go disposed of ex

parte in spite of his harassment both physically/mentally and financially

if therebe any at all.

The wife has no independent source of his income to meet the

financial expenses needed for ensuring his proper participation in the
5

proceeding, registered in connection with Misc. Case No. 92 of 2017

pending before the learned District Judge Barrackpore Court with a

prayer for custody of the children filed by the opposite party/husband.

The significant aspect to be kept in mind is that at the present

moment, the petitioner/wife is at the mercy of her parents after being

deserted by her husband/opposite party. The wife is having two minor

children. If she has to participate in the proceeding initiated at

Barrackpore praying for custody of the children, she would be

unnecessarily put to face a financial burden, apart from incurring

physical hazards taking two minor children with her. It is not the

position that the instant proceeding praying for custody of the children

has been initiated within 50 KM away from the parental house of the

petitioner/wife, where she has been now residing. Though the husband

has no permanent job, but she has some moderate income, which would

sufficient for him to meet the needed expenses for undertaking journey

from his own house to Durgapur.

The another important fact is that earlier in a proceeding under

Section 125 Cr. P.C initiated at Durgapur by wife, the opposite party

already contested the case by ensuring his presence even after incurring

physical hazards together with the financial expenses needed therefor.

The scope of making arrangement of required fund is comparatively more

so far as the husband is concerned, than that of the wife/petitioner at

the moment, because the wife for want of realisation of maintenance due,
6

already initiated execution proceeding against the husband which is

pending.

Upon consideration of the comparative harassment together with

the expenses needed therefor to make successful participation in

connection with a prayer for custody of the children, it would be

reasonable and most expedient to transfer the Misc. Case No. 92 of 2017

from the Court of the learned Additional District Judge at barrackpore,

North 24 Parganas to the Court of the learned Additional District Judge

at Durgapur, Burdwan. If such an order of transfer is passed, that will

not cause any prejudice any more, because in earlier proceeding initiated

by wife at Durgapur under Section 125 Cr.P.C, the opposite

party/husband voluntarily ensured his appearance therein, and

contested the proceeding making his due participation in the proceeding.

In that view of the matter, the Court finds sufficient reasons,

supportive of transfer of instant proceeding. The petitioner/wife cannot

be expected as such to participate in the Court proceeding at

Barrackpore taking two children with her, after undertaking a journey of

less than three (3) hours incurring sufficient expenses therefor in a case,

where she is having no source of income to meet such expenses,

compared to her husband.

The application under Section 24 of the Code of Civil Procedure

seeking transfer deserves success.

7

The learned Additional District Judge at Barrackpore, North 24

Parganas is directed to transfer Misc. Case No. 92 of 2017 under Section

25 of the Guardians and Wards Act, 1890 praying for custody of the

children to the Court of learned Additional District Judge at Durgapur,

Burdwan within a fortnight from the date of receipt of the

communication of the order. Petitioner is directed to make

communication of the order to learned ADJ Barrackpore, where the

instant case is pending.

Learned District Judge Durgapur, Burdwan upon receipt of the

case record from Barrackpore Court would proceed with the proceeding

under Guardians and Wards Act, giving sufficient opportunity of hearing

to either of the parties to this case, and directed accordingly to issue

notice upon both the parties intimating arrival of the case record from

Barrackpore Court, and next date of hearing fixed, subject to his

convenience.

Urgent certified copy of this order, if applied for, be given to the

appearing parties as expeditiously as possible upon compliance with the

all necessary formalities.

(Subhasis Dasgupta, J.)

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