In the High Court at Calcutta
Civil Revisional Jurisdication
The Hon’ble Justice Subhasis Dasgupta.
CO. No. 2359 of 2017
Smt. Mithu Chakraborty nee Banerjee
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
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
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
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
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
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,
already initiated execution proceeding against the husband which is
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.
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
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.)