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Sri Pratik Ram Mandal vs Smt. Sushmita Sarkar Mandal on 19 September, 2019

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19.09.19

Srimanta
List – S/L
Sl. No. 05
Ct. No. 25
C.O. 705 of 2019

Sri Pratik Ram Mandal

-Vs.-

Smt. Sushmita Sarkar Mandal

Mrs. Sohini Chakraborty, Adv.,
Mr. Arijit Sarkar, Adv.,
…for the petitioner.

Mr. Sri Kumar Sinha, Adv.,
Mr. Nilanjan Adhikari, Adv.

…for the opposite party.

The opposite party/wife filed Matrimonial Suit No. 472 of 2018 against
the husband/petitioner praying for dissolution of marriage by a decree of
divorce and the said suit is pending before the Fast Track, 3rd Court of the
learned Additional District Judge at Malda. The husband/petitioner has prayed
for transferring the said suit from Malda to Balurghat to a Court of competent
jurisdiction on the following grounds: –

(i) Both the petitioner and the opposite party are permanent
residents of Dakshin Dinajpur within the jurisdiction of
Balurghat Court.

(ii) The permanent residence of the opposite party is at Gopalganj
which is situated at a distance of about 20 K.Ms. from
Balurghat.

(iii) After marital discord, the opposite party lodged a complaint
against the petitioner on the basis of which a criminal case
under Section 498A of the Indian Penal Code along with other
cognate penal provisions was instituted and the said criminal
case is pending at Balurghat.

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(iv) The opposite party is a teacher of a primary school. She sought
for transfer to Malda about one year back and then instituted
the above-numbered Matrimonial Suit at Malda. According to
the petitioner, if the said Matrimonial Suit is transferred to
Balurghat both parties will get opportunity to contest all legal
proceedings arising between them from one Court. Therefore,
the petitioner has prayed for transfer of the said Matrimonial
Suit to the Court of the learned District Judge, Dakshin
Dinajpur, Balurghat.

Though the opposite party has not filed any affidavit-in-opposition
against the instant revisional application, it is submitted by the learned
Counsel for the opposite party that the petitioner has been residing at Malda
with her minor child. Admittedly, she is a primary School Teacher. There is
no other person to look after the said child during the absence of the
petitioner. Secondly, the Court of the learned District Judge, Malda has the
territorial jurisdiction to hear out the suit filed by the opposite party against
the petitioner. Thirdly, the petitioner is a Teacher of a High School at
Balurghat. He will not suffer any inconvenience to attend Malda Court to
contest the said suit. Therefore, the instant petition, according to the learned
Counsel for the opposite party is misconceived and ought to be rejected.

Learned Counsel for the petitioner, in course of argument refers to a
decision of the Hon’ble Supreme Court in the case of Tejalben -Vs.-
Mihirbhai Bharatbhai Kothari, reported in (2016) 3 SCC 69. In the said
report, the Hon’ble Supreme Court transferred a Matrimonial Suit from Rajkot
to Jamnagar in the State of Gujarat on the ground that other proceedings
between the parties were pending at Jamnagar. Learned Advocate for the
petitioner also refers to another unreported decision of this Court in C.O. No.
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916 of 2016 delivered by a Co-ordinate Bench in Re : Pradipta
Chakraborty on 27th July, 2016 wherein Tejalben (Supra) was considered
and followed and the Matrimonial Suit was transferred to a Court where other
proceedings are pending. Thus, it is submitted on behalf of the petitioner that
the Matrimonial Suit may be transferred to Balurghat for trial and disposal.

It is not disputed that the parties are permanent residents of Dakshin
Dinajpur. Marriage was solemnized between the petitioner and the opposite
party at a place within the jurisdiction of the Principal Civil Judge of the District
of Dakshin Dinajpur. The parental home of the opposite party is situated
about 20 K.Ms. away from Balurghat Court premises. It is pointed out by the
learned Advocate for the petitioner that the petitioner sent notice of the
instant proceeding to the address of the opposite party both at Balurghat and
Malda. Notice was received in the address of her paternal home in Dakshin
Dinajpur, but notice sent to her Malda address was returned with postal
remark ‘door locked’.

Considering such postal remark and receipt of notice by the opposite
party at her Dakshin Dinajpur address, this Court may take presumption that
the petitioner was available at her address in Dakshin Dinajpur at least on the
date of service of notice to her. Indisputably, a criminal case under Section
498A of the Indian Penal Code instituted by the opposite party is pending at
Balurghat. The petitioner filed an application under the Guardians and SectionWards
Act praying for custody of her minor child at Balurghat wherefrom a statutory
presumption can be drawn that on the date of filing of the said application
under Guardians and SectionWards Act the petitioner along with the child used to
reside within the jurisdiction of Dakshin Dinajpur.

Learned Advocate for the opposite party repeatedly submits to consider
the complaints filed by the opposite party on 14th February, 2018 and 16th
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June, 2018 at Kumarganj Police Station and Balurghat Police Station, both
under Dakshin Dinajpur making certain allegations against the petitioner and
his family members to the effect that they tried to snatch away the minor child
from the custody of the opposite party. Therefore, it will be very difficult for
the opposite party to conduct the Matrimonial Suit at Balurghat.

It is already recorded in my order that the proceeding relating to custody
of the minor child was filed at Balurghat and the said matter was disposed of.
By an order of the Court of competent jurisdiction custody of the child was
handed over to the petitioner. However, the said order was not complied with.
On the other hand, the opposite party has filed an appeal before this Court
challenging the order passed by the learned Trial Judge in the said proceeding
under the Guardians and SectionWards Act. The child is still under the custody of
mother. It is submitted by the learned Counsel for the petitioner that the
opposite party has been directed to produce the child for the purpose of
visitation by the father/petitioner herein.

In view of such circumstances, this Court is not satisfied that the
opposite party will face inconvenience to proceed with her suit for dissolution
of marriage at Balurghat. Moreover, she has also her paternal family
members within the jurisdiction of Balurghat.

Considering all such circumstances and relying on the decision in
Tejalben (Supra), I am inclined to allow the instant application under Section
24 of the Code of Civil Procedure. In view of the above discussion, the instant
revision is allowed on contest, however, without costs.

Department is directed to send a copy of this order both to the learned
Additional District Judge, 3rd Fast Track Court at Malda and the learned District
Judge, at Balurghat, Dakshin Dinajpur for information and compliance.

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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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