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Smt. Sayani Sikder (Mazumder) vs Swarup Kumar Sikder on 4 November, 2019

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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.
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(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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