Calcutta High Court (Appellete Side)
Lopamudra Ballav Bandyopadhyay vs Mahesh Bandyopadhyay on 22 August, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 22.08.19
Srimanta List - S/L Sl. No. 22 Ct. No. 25 C. O. 1372 of 2019 Lopamudra Ballav Bandyopadhyay
-Vs.-
Mahesh Bandyopadhyay Mr. Piyush Chaturvedi, Adv., Mr. Bhagat Chowdhury, Adv., Mr. Somesh Kumar Ghosh, Adv.
...for the petitioner/wife.
Mr. Asraf Mandal, Adv.
...for the opposite party.
A suit for restitution of conjugal rights being Matrimonial Suit No. 40 of 2019 under Section 22 of the Special Marriage Act is sought to be transferred by the wife/petitioner from the Court of the learned District Judge, Paschim Burdwan to the Court of the learned Additional District Judge, Arambag in the district of Hooghly. It is stated by the petitioner that her marriage with the opposite party was solemnized on 15th February, 2006 under the Special Marriage Act. In the said wedlock, the petitioner gave birth to a male child in 2008. Unfortunately, the said child is a special child suffering from cerebral palsy. It is further alleged by the petitioner that on 26th January, 2019 the opposite party and other matrimonial relations of the petitioner drove her out from her matrimonial home with her child and she is compelled to take shelter at Arambag at her paternal home. After being tortured both physically and mentally followed by driving out from the matrimonial home, the petitioner lodged a complaint under Section 498A/506 of the Indian Penal Code before the police authority on the basis of which Goghat Police Station Case No. 29 of 2019 dated 27th January, 2019 was registered. The petitioner also filed an application under Section 125 of the Code of Criminal Procedure praying for maintenance allowance for herself and her child. It is pleaded by the petitioner that Paschim Burdwan is situated at a distance of about 163 K.Ms. 2 from Arambag. It takes about four hours to reach Paschim Burdwan Court from Arambag in one way. Moreover, it is not possible for the petitioner to leave her child who is suffering from cerebral palsy and contest the said suit at Paschim Burdwan. It is also pleaded by the petitioner that she reasonably apprehends that she would be harassed and threatened if she attends Paschim Burdwan Court to contest the suit. So, the petitioner has prayed for transfer of the said matrimonial suit from Paschim Burdwan to Arambag in the district of Hooghly.
I have heard Mr. Chaturbedi, learned Advocate for the petitioner. On perusal of the documents annexed with the application, especially the plaint filed by the opposite party claiming relief under Section 22 of the Special Marriage Act it is found that in paragraph 8 of the plaint the opposite party also admitted that in the wedlock between him and the petitioner, the latter gave birth to a child suffering from cerebral palsy. I am in agreement with the submission made by Mr. Chaturbedi that special child needs constant support of his/her mother. It is not possible for the petitioner to leave her child under the custody of any other member of her paternal home to contest the suit at Paschim Burdwan. Needless to say, in a proceeding under Section 24 of the Code of Civil Procedure arising out of a matrimonial suit convenience of the wife/petitioner is the prime consideration for the Court for arriving at a decision. In case of comparative convenience and inconvenience between the husband and wife, inconvenience of the wife must prevail for decision. The decision of the Hon'ble Supreme Court in the case of Rajani Kishor Pardeshi
-Vs.- Kishor Babulal Pardeshi, reported in (2005) 12 SCC 237 may be relied on in support of my observation.
For the reasons stated above, the instant application under Section 24 of the Code of Civil Procedure is allowed.
3Matrimonial Suit no. 40 of 2019 pending before the learned District Judge Paschim Burdwan be transferred to the learned Additional District Judge, Arambag in the district of Hooghly for trial and disposal.
Office is directed to send a copy of this order to both the Courts below for information and necessary action.
A copy of the order be also sent to the learned District Judge, Hooghly for information.
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.)