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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
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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.)