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Smt. Moumita Nath @ Karmakar vs Sri Sanku Nath on 27 August, 2019

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27.08.19

Srimanta
List – S/L
Sl. No. 04
Ct. No. 25
C. O. 2369 of 2019

Smt. Moumita Nath @ Karmakar

-Vs.-

Sri Sanku Nath

Mr. Saptarshi Chakraborty, Adv.

…for the petitioner.

Mr. Sanjib Bandyopadhyay, Adv.

…for the opposite party.

This is an application under Section 24 of the Code of Civil Procedure
filed the petitioner/wife praying for transfer of Matrimonial Suit No. 103 of
2019 instituted by the opposite party/husband against her in the Court of the
learned Additional District Judge, Baruipur, South 24-Parganas to the Court of
the learned District Judge, Nadia at Krishnagar.

It appears from the application that marriage of the petitioner with the
opposite party was solemnized on 12th August, 2018 according to Hindu Rites
and Ceremonies. After marriage the petitioner went to her matrimonial home
where she was subjected to physical and mental torture. It is alleged that on
4th November, 2018, i.e., within three months of the marriage, the petitioner
was subjected to physical and mental torture by the opposite party. Failing to
bear such torture, the petitioner was compelled to leave her matrimonial home
and take shelter at her paternal home at Bethuadahari in the district of Nadia.
The petitioner lodged a proceeding under Section 125 of the Code of Criminal
Procedure in the Court of the learned 2nd Judicial Magistrate, Nadia at
Krishnagar praying for monthly maintenance allowance for herself on the basis
of a complaint filed by the petitioner under Section 498A of the Indian Penal
Code and other penal provisions, a criminal case was registered against the
opposite party and the said case is also pending before the 5th Court of the
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learned Judicial Magistrate, Nadia at Krishnagar. The petitioner has further
pleaded that in order to contest the suit filed by the opposite party the
petitioner will have to travel about 310 K.Ms. in both ways from Bethuadahari.
Besides her old ailing parents she has no other person to accompany her to
Baruipur Court to contest the said suit. It will be a sheer inconvenience on the
part of the petitioner if she is compelled to contest the suit at Baruipur. So is
the application under Section 24 of the Code of Civil Procedure. Mr. Saptarshi
Chakraborty, learned Advocate for the petitioner submits that the opposite
party has already entered appearance at Krishnagar, Nadia to contest the
proceeding under Section 125 of the Code of Criminal Procedure and the
criminal case which was instituted by the petitioner/complainant. When the
opposite party has been attending Krishnagar Court at Nadia, he will not face
any inconvenience if the matrimonial suit is transferred to Krishnagar, Nadia.

On the other hand, Mr. Sanjib Bandyopadhyay, learned Advocate for the
opposite party submits that in a proceeding under Section 24 of the Code of
Civil Procedure arising out of a matrimonial suit plea of inconvenience of the
petitioner cannot always be taken as sacrosanct. The petitioner is a grown up
lady. Nowhere it is pleaded that she cannot travel to Baruipur Court to contest
the matrimonial suit. He also submits that pendency of some criminal case
cannot be treated as a pre-condition or a ground to transfer a matrimonial
suit. The Court of the learned Additional District Judge at Baruipur enjoys
jurisdiction to try the said matrimonial suit under Section 19 of the Hindu
Marriage Act. Therefore, the petitioner may be directed to appear before
Baruipur Court to contest the matrimonial suit and the instant application
under Section 24 of the Code of Civil Procedure is liable to be rejected.

Having heard submissions made by the learned Advocates for the
petitioner and the opposite party and on perusal of the application under
Section 24 of the C.P.C. as well as the documents annexed therewith, it is
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found that the petitioner’s stay at her matrimonial home for few months after
marriage was not at all happy. Within three months of marriage she had to
leave her matrimonial home. On the contrary, from the copy of the plaint of
Matrimonial Suit No. 103 of 2019 it is ascertained that the opposite party has
prayed for a declaration of nullity of marriage on the ground that the said
marriage was not consummated by and between the parties only due to stiff
resistance offered by the petitioner.

Be that as it may, the opposite party has not denied that he has entered
appearance and is contesting the proceedings under Section 125 of the Code
of Criminal Procedure and the criminal case under Section 498A of the Indian
Penal Code and other cognate penal provisions at Krishnagar. It is also not
disputed that the petitioner will have to travel a distance of about 310 K.Ms. in
both ways from Bethuadahari to Baruipur if the said matrimonial suit is not
transferred to Krishnagar to contest the said suit.

The learned Advocate for the opposite party has urged that the opposite
party has also old ailing parents. He will also suffer inconvenience to proceed
with the said matrimonial suit if it is transferred to Krishnagar.

Under the similar factual background, the Hon’ble Supreme Court in the
case of Rajani Kishor Pardeshi -Vs.- Kishor Babulal Pardeshi, reported in
(2005) 12 SCC 237 held that in a proceeding under Section 24/25 of the
Code of Civil Procedure arising out of a matrimonial suit inconvenience of the
wife should be given preference over the inconvenience of the opposite party.
Plea of inconvenience by the opposite party does not stand due to the reason
that he has been contesting two other proceedings at Krishnagar. For the
reasons stated above, I am inclined to allow the instant application under
Section 24 of the Code of Civil Procedure.

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Accordingly, application under Section 24 of the Code of Civil Procedure
filed by the petitioner is allowed on contest, however, without cost.

Matrimonial Suit No. 103 of 2019 now pending before the learned
Additional District Judge at Baruipur, South 24-Parganas be transferred to the
learned District Judge, Nadia at Krishnagar for trial and disposal.

Department is directed to send a copy of this order to the learned
Additional District Judge, Baruipur, South 24-Parganas and the learned District
Judge, Nadia at Krishnagar for information and compliance. A copy of this
order be also sent to the learned District Judge, South 24-Parganas at Alipore
for information.

Urgent photostat certified copy of this order, if applied for, be given to
the learned Advocates for the parties on the usual undertakings.

(Bibek Chaudhuri, J.)

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