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Sri Kedar Nath Kundu vs Smt. Mandira Kundu (Sahu) on 6 August, 2019

1

06.08.2019

suman 03
Ct.25
C.O. 1068 of 2019

Sri Kedar nath Kundu
Vs.

Smt. Mandira Kundu (Sahu)

Mr. Animesh Das
…for the petitioner

Mr. Tapan Kumar Jana
…for the opposite party

A failed marriage between the parties led to filing of

series of litigations. Most of the litigations were instituted by

the opposite party against the petitioner. Instances of such

litigations are as follows:-

(i) Shibpur P.S. Case No.266 of 1991 under

Section 498A /Section34 of the Indian Penal Code

corresponding to G.R. Case No.1707 of 1991.

(ii) Complaint Case No.1115C of 1991 before the

4th Court of the learned Judicial Magistrate at

Howrah under Section 406 of the Indian Penal

Code.

(iii) Title Suit No.202 of 2008 filed in the 2nd Court

of the learned Civil Judge (Junior Division) at

Howrah for declaration that marriage between
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the present opposite party and the petitioner

herein is subsisting and also for permanent

injunction.

(iv) Proceedings under Section 144 (2) of the

Code of Criminal Procedure before the

Executive Magistrate, Howrah.

(v) Application under Section 125 of the Code of

Criminal Procedure praying for maintenance

against the petitioner.

(vi) Subsequent application under Section 127 of

the Code of Criminal Procedure for

enhancement of maintenance allowance.

(vii) A proceeding under Section 12 read with

Sections 18/Section19/Section20/Section22/Section23 of the Protection of

Women from SectionDomestic Violence Act, 2005

pending before the learned Chief Judicial

Magistrate, Howrah.

Admittedly the above litigations were filed by the

opposite party in different Courts having jurisdiction at

Howrah. It is also not disputed that previously the petitioner

made an application for transferring miscellaneous execution

case arising out of the order passed under Section 125 of the
3

Code of Criminal Procedure from Howrah Court to any other

Court of competent jurisdiction at Alipore by filing a

revisional application before this Court. This Court rejected

the said application for transfer of the execution case from

Howrah Court to Alipore Court by an order dated 21st

September, 2000 in CRR No.790 of 2000.

Subsequently the opposite party has filed a suit for

restitution of conjugal rights of MAT Suit No.129 of 2018

praying for restitution of conjugal rights in the Court of the

learned District Judge, South 24 Parganas at Alipore.

The petitioner /husband has filed the instant

application under Section 24 of the Code of Civil Procedure

praying for transfer of the said matrimonial suit from the

Court of the learned District Judge, South 24 Parganas at

Alipore to the Court of the learned District Judge at Howrah

mainly on the grounds that all previous litigations were filed

by the wife/opposite party at Howrah Court. Secondly,

Howrah Court has the jurisdiction to try the said suit because

the opposite party /defendant ordinarily resides in the

jurisdiction of Howrah Court. Thirdly, the petitioner is a

retired person who is now aged about 62 years. He is

suffering from osteoporosis and eye disease. Fourthly, the
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petitioner will face physical hardship to attend the Court at

Alipore from Satragachi, Howrah.

Mr. Animesh Das, learned advocate for the

husband/petitioner submits that except MAT Suit No.129 of

2018, the opposite party instituted all other cases in different

Courts at Howrah only to harass the present petitioner. This

suit was filed by the petitioner before the learned District

Judge, South 24 Parganas at Alipore. In this regard he refers

to a decision of the Hon’ble Supreme Court in the case of

SectionRakhi Banejee vs. Subhankar Mukherjee reported in

2009 (1) CLJ (SC) 238 where the Hon’ble Supreme Court

favourably considered factual position that except the

matrimonial suit all other cases were instituted in West

Bengal while the matrimonial suit was instituted by the

husband at Chennai and allowed the prayer for transferring

the said matrimonial suit from Channai to West Bengal under

applying the provision under Section 25 of the Code of Civil

Procedure.

It is further submitted by the learned counsel for the

petitioner placing reliance upon the decision of the Hon’ble

Supreme Court in the case of SectionVandana Sharma vs. Rakesh

Kumar Sharma reported in 2008 (2) CLJ (SC) 255 that
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the Court should consider comparative hardship and genuine

difficulty of the parties in attending a particular Court to

contest the suit i.e., the prime consideration which should be

taken care of by the Court while disposing of the application

under Section 24/25 of the Code of Civil Procedure.

According to the learned advocate for the petitioner, the

petitioner who is a patient of eye ailment and osteoporosis

will have to travel a distance of about 18 kilometers from his

residence to attend Alipore Court to contest the said

matrimonial suit. On the contrary, the opposite party will

have to take journey of about 8/9 kilometers from her

residence to reach Howrah Court. Therefore, the said

matrimonial suit ought to be transferred to the Court of the

learned District Judge, Howrah.

Learned advocate for the opposite party, on the other

hand submits that the opposite party instituted the cases and

proceedings against the petitioner at Howrah being

wrongfully advised by her advocate. Since the opposite

party filed certain cases at Howrah Court, it cannot be said

that the Matrimonial Suit No.129 of 2018 ought to be

transferred to Howrah. It is further submitted by the learned

counsel for the opposite party that in a proceeding under
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Section 24 of the Code of Civil Procedure arising out of the

matrimonial suit convenience of the wife is the paramount

consideration. The wife/opposite party resides at Kalighat.

Alipore Court is at a distance of about 5 minutes travelling

from her residence. On the contrary, she will have to take a

journey of considerable distance to reach Howrah Court.

Therefore, if the said matrimonial suit is transferred to

Howrah Court, the opposite party will suffer hardship.

On due consideration of submission made by the

learned counsels for the parties and after careful perusal of

the application under Section 24 of the Code of Civil

Procedure as well as the documents filed by the learned

counsels for the parties at the time of hearing, it is found

that undisputedly the opposite party instituted all cases

except Matrimonial Suit No.129 of 2018 in different Courts at

Howrah. Some of the cases have already been disposed of.

Some other cases are still pending. One of such pending case

is a proceeding under the Protection of Women from

SectionDomestic Violence Act, 2005. If the said proceedings were

wrongly filed by the opposite party in a wrong Court on the

basis of wrong advice of her learned advocate she could have

made an application for transfer of those cases to any other
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Court of competent jurisdiction. She has not taken any such

step. Even today, she has been carrying on the proceeding

under the provision of Protection of Women from SectionDomestic

Violence Act, 2005 against her husband in the Court of the

learned Chief Judicial Magistrate, Howrah. It is needless to

say that the opposite party must attend Howrah Court at a

regular interval to represent her case/cases. She never

came forward pleading her hardship to represent the

case/cases instituted by her at Howrah Court under various

provisions of different statutes.

It is not disputed that the husband petitioner is aged

about 62 years. The opposite party has not also disputed by

filing an affidavit-in-opposition regarding various ailments

the petitioner is suffering.

Since all other proceedings were instituted in Howrah

Court, I am of the view that the opposite party can maintain

Matrimonial Suit No.129 of 2018 against the petitioner at

Howrah Court and she will not face any inconvenience to

reach Howrah Court specially when it is found that she has

been attending Howrah Court to represent the cases filed by

her against the present petitioner.

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In view of the above discussion, I am inclined to allow

the application under Section 24 of the Code of Civil

Procedure.

The Matrimonial Suit No.129 of 2018 presently pending

before the 13th Court of the learned Additional District Judge,

South 24 Parganas at Alipore be transferred to the Court of

the learned District Judge at Howrah for trial and disposal.

Office is directed to send copy of this order to both the

learned Additional District Judge, 13th Court, South 24

Paranas at Alipore and the learned District Judge at Howrah

for information and compliance of this order forthwith.

The present revisional application is allowed on

contest, however, without cost.

Urgent photostat certified copy of this order, if applied

for, be made available to the parties upon compliance of the

requisite formalities.

(Bibek Chaudhuri, J.)

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