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04.11.2019
suman 04
Ct.25
C.O.2430 of 2018
Smt. Sayani Sikder (Mazumder)
Vs.
Swarup Kumar Sikder
Mr. Debjit Mukherjee
Mr. Chandranath Chattopadhay
Ms. Susmita Chatterjee
Ms. Amrita Tiwari
Mr. Kaustav Chatterjee
…for the petitioner
Mr. Shiba Prasad Ghosh
Mr. Prantick Ghosh
…for the opposite party
The petitioner is the legally married wife of the
opposite party who seeks for transfer of Matrimonial Suit
No.616 of 2018 presently pending before the learned
Additional District Judge, Barrackpore, North 24 Parganas
filed by the opposite party to any Court of competent
jurisdiction at Durgapur in the district of Paschim Burdwan.
It is pertinent to mention that the above numbered
Matrimonial Suit filed by the opposite party is for restitution
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of conjugal rights under the provision of SectionSpecial Marriage Act
against the present petitioner.
The petitioner has prayed for transferring the said
Matrimonial Suit to Durgapur mainly on the grounds that in
the wedlock between the parties the petitioner gave birth to
a male child on 23rd June, 2015 at her paternal home at
Durgapur. Since the birth of the child the opposite party
/husband did not take any information about the well being
of the petitioner and their child. During her stay at
matrimonial home she was subjected to physical and mental
torture. As a result, the petitioner initiated a proceeding
under Section 498A of the Indian Penal Code and other
cognate penal provisions against her husband and other
matrimonial relations at Durgapur and the said criminal case
is pending before the learned A.C.J.M., Durgapur. Secondly,
the opposite party / husband has refused and neglected to
pay maintenance to the petitioner and to her minor child in
spite of such order being passed in a proceeding under
Section 125 of the Code of Criminal Procedure by a learned
Magistrate at Durgapur. Thirdly, the child of the parties has
now attained four years of age and he is studying in a school
at Durgapur. The petitioner has old parents. It is not
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possible for them to accompany the petitioner to Barrackpore
Court on each and every occasion when the date is fixed in
the said matrimonial suit to contest the same. Therefore, it
is prayed by the petitioner that Matrimonial Suit No.616 of
2018 may be transferred to any Court of competent
jurisdiction at Durgapur. The opposite party has filed
affidavit-in-opposition stating, inter alia, that the petitioner
has suppressed in her petition that she has been working as
HR Executive in a private hospital at Durgapur. In spite of
her having independent source of income she has been
pressing for maintenance. For suppression of such material
fact the instant petition is liable to be dismissed.
The petitioner, in turn, has filed affidavit-in-reply
reiterating her stand as it was taken in her petition.
Mr. Debjit Mukherjee, learned advocate for the
petitioner submits that the matrimonial suit is required to be
transferred to Durgapur specially due to the reason that
another proceeding under Section 498A of the Indian Penal
Code is pending between the parties. The husband has
entered appearance in the said proceeding and has been
contesting the same. Therefore, the husband will not suffer
any inconvenience to reach and contest the matrimonial suit
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at Durgapur if it is so transferred. It is also submitted by Mr.
Mukherjee that the minor child of the petitioner is now aged
about four years and he has been studying in a school at
Durgapur. It is not possible for the petitioner to leave her
minor child and contest the suit travelling the distance of
about 179 kilometres from Durgapur. In support of his
contention Mr. Mukherjee refers to a decision of the Hon’ble
Supreme Court in the case of Tejalben versus Mihirbhai
Bharatbhai Kothari reported in (2016) 3 Supreme Court
Cases 69. In the said report the matrimonial proceeding was
transferred from Rajkot to Jamnagar in the State of Gujarat
on the ground that at Jamnagar other proceedings between
the parties were pending. Same principle is enunciated in
G.R. Bhuvaneshwari versus G. S. Puttaraju reported in
(2018) 13 SCC 650 where the Hon’ble Supreme Court was
pleased to transfer a matrimonial proceeding from Maddur to
Mysore considering, inter alia, that the petitioner is a single
mother responsible for looking after her minor child at
Mysore. In Anupama Patil versus Nataraj Veeranagouda
Patil reported in (2018) 15 SCC 354 the matrimonial suit
was transferred from the Family Court at Hubballi to the
Family Court of Bengaluru, Karnataka on the same ground of
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pendency of other proceedings between the parties at
Bengaluru. Mr. Mukherjee has called upon Court to apply the
said principles laid down by the Hon’ble Supreme Court in
the matter of transfer of matrimonial case from one Court to
the other.
Mr. Shiba Prasad Ghosh, learned advocate for the
opposite party, on the other hand, vehemently argues that
the petitioner is a working lady. She suppressed the said
fact in the application under Section 24 of the Code of Civil
Procedure. The petitioner regularly attends her place of work
leaving behind her minor child. Therefore, she can also travel
to Barrackpore to contest the suit. It is also submitted by Mr.
Ghosh, learned advocate for the opposite party that the
opposite party has been going on paying maintenance
allowance as per order passed in a proceeding under Section
125 of the Code of Criminal Procedure to the petitioner.
Therefore, she has no financial hardship to contest the suit at
Barrackpore.
Learned counsel for the opposite party further submits
that in a proceeding under Section 24 of the Code of Civil
Procedure it is not tried that only inconvenience of the
wife/petitioner should be looked into. Relative convenience
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and inconvenience of both the parties should be considered.
If the matrimonial suit is transferred to Durgapur, the
opposite party also will have to travel a distance of about
179 kilometres. It will cause inconvenience to him. He
invites the Court to consider this aspect also. It is also
submitted by the learned counsel for the opposite party that
the petitioner practically entered appearance in Matrimonial
Suit No.616 of 2018 and filed an application under Section
36 of the Special Marriage Act praying for alimony pendente
lite. The said matter is pending before the learned Additional
District Judge, Barrackpore. The conduct of the petitioner
suggests that she would suffer any inconvenience to contest
the suit at Barrackpore. In view of the fact that no such
allegation has been made out in the application.
Having regard to the submission made by the learned
counsels for the petitioner and the opposite party and on due
consideration of the averment made in the application,
affidavit-in-opposition and affidavit-in-reply as well as
keeping in mind the guiding principles laid down by the
Hon’ble Supreme Court governing the field the following
undisputed facts are ascertained:-
(1) The petitioner has been staying at Durgapur.
7(2) The marital relationship between the parties is
suffered from distrust and discord.
(3) At last two criminal proceedings between the
parties are pending at Durgapur.
(4) The matrimonial suit for restitution of conjugal
rights filed by the opposite party is pending at
Barrackpore wherein the petitioner had entered
appearance and filed an application under
Section 36 of the Special Marriage Act praying
for alimony pendente lite and the said
proceeding is still pending before the learned
Court of trial.
(5) In the wedlock between the parties the petitioner
gave birth to a male child in the month of June,
2015. He is now aged about four years and is a
student of a school at Durgapur.
(6) Last but not the least the petitioner has been
working as HR Executive in a private hospital at
Durgapur.
At the time of argument the learned counsel for the
opposite party has proposed that the Court should also
consider the relative inconvenience of the opposite party and
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he proposes to transfer the said matrimonial suit to a Court
where no inconvenience may be caused for both the parties.
This Court is of the view that the proposal made by the
learned counsel for the opposite party is well acceptable at
this stage.
For the reasons stated above, the instant application
under Section 24 of the Code of Civil Procedure is disposed of
with a direction that the Matrimonial Suit being No.616 of
2018 pending before the learned Additional District Judge,
Barrackpore, North 24 Parganas be transferred to the Court
of the learned District Judge, Burdwan in the district of Purba
Burdwan.
A copy of this order be sent to the learned District
Judge, North 24 Parganas at Barrackpore and the learned
District Judge, Purba Burdwan for information and
compliance through the department forthwith.
Urgent photostat certified copy of this order, if applied
for, be given to the learned advocates for the parties on
usual undertakings.
(Bibek Chaudhuri, J.)
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