Gauhati High Court
Mamata Das Choudhury vs Sumit Choudhury on 22 November, 2019
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010083552019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(C). 31/2019
1:MAMATA DAS CHOUDHURY
W/O. SRI SUMIT CHOUDHURY, D/O. SHI CHANCHAL DAS, R/O. M.AZAD
ROAD NAGAON, P.O. NAGAON, P.S. NAGAON, SADAR, DIST. NAGAON,
ASSAM.
VERSUS
1:SUMIT CHOUDHURY
S/O. LT. SACHIDANANDA CHOUDHURY, R/O. 32 CHATTESWAY COLONY,
P.O. DIMAPUR, NAGALAND, PIN-797112.
Advocate for the Petitioner : MR. P K ROY
Advocate for the Respondent : MR. M BISWAS
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 22-11-2019 Heard Mr. P. K. Roy, the learned counsel for the petitioner. Also heard Mr. M. Biswas, learned counsel for the respondent.
2. By this petition under Section 24 read with Section 151 of the Code of Civil Procedure(CPC), 1908, the petitioner has prayed for transfer of the proceedings of Divorce Case No. 2/2016 pending before the Court of learned Principal Judge, Family Court, Kohima to the Court of learned District Judge, Page No.# 2/7 Nagaon.
3. The marriage between the petitioner and the respondent was solemnized on 03.02.2014 as per Hindu rites and rituals at Nagaon at the parental house of the petitioner. Out of wedlock, a girl child was born to them on 31.10.2014. The case of the petitioner is that after the marriage, the petitioner was treated with cruelty, both mentally and physically, at her matrimonial home and ultimately, the family members of the respondent forced the petitioner to leave her matrimonial home in the month of August, 2015 and since then, the petitioner has been residing at her parental home at Nagaon along with the girl child. After being so forced out, the petitioner has instituted a proceeding against the respondent under the provisions of the Protection of Women from Domestic Violence Act, 2005 ("the DV Act", in short) before the Court of learned Judicial Magistrate, First Class at Nagaon, where the respondent has entered appearance on receipt of summons and thereafter, is contesting the case by appearing in the said case on subsequent dates. The said case is registered and numbered as DV Case No. 151 of 2016. The learned Court of Judicial Magistrate has also passed an order of interim maintenance of Rs. 12,000/- for the petitioner and her child, which order came to be challenged by the respondent by filing a criminal appeal, Criminal Appeal No. 11(N)/2017, before the Court of learned Sessions Judge, Nagaon, which was ultimately dismissed by an order dated 12.05.2017. Assailing the said order dated 12.05.2017, the respondent filed a criminal revision petition, Criminal Revision Petition No. 231/2017, before this Court and the same was also dismissed by this Court by an order dated 20.11.2018.
4. In the meantime, the respondent had filed a petition under Section 13(1) (1a) under the Hindu Marriage Act, 1954 before the learned Principal Judge, Family Court, Kohima seeking dissolution of the marriage by a decree of divorce. The said petition which is registered as Divorce Case No. 2/2016, was decreed ex-parte against the petitioner by a judgment and order dated Page No.# 3/7 15.12.2016. Being aggrieved by the said judgment and order, passed ex-parte, the petitioner approached this Court by filing Matrimonial Appeal No. 72/2017, after being granted permission to move the same at the Principal Seat of this Court at Guwahati. Upon hearing the parties, a Division Bench of this Court had quashed and set aside the order dated 15.12.2016, passed ex-parte against the petitioner, and had enabled the petitioner to contest the said proceeding at Kohima by directing the parties to appear before the learned Court of Principal Judge, Family Court, Kohima on 08.03.2019 by the judgment and order dated 31.01.2019.
5. On 08.03.2019, the petitioner appeared in the Court of learned Court of Principal Judge, Family Court, Kohima in Divorce Case No. 2/2016 and sought time to file her written statement in the said proceeding. Prior to the next date of filing the written statement, which was fixed on 30.04.2019, this petition has been preferred by the petitioner seeking the transfer of proceedings as mentioned above and an interim order was passed on 12.04.2019 staying further proceeding in connection with Divorce Case No. 2/2016.
6. It is contended on behalf of the petitioner that it was after being forced out of the matrimonial house, the petitioner had to take shelter at her parental house at Nagaon along with her girl child. The girl child is presently pursuing her studies at Nagaon. It is submitted on behalf on the petitioner that if she is made to attend the proceeding at Kohima which is at a far-off distance from her present place of stay, she would face immense inconvenience as it would be difficult for her to travel to Kohima alone as there is nobody in her family to accompany her to Kohima. It is also not possible to attend the proceedings at Kohima, by going from Nagaon, in one day and any appearance at Kohima because of the available communication facilities at present, would require 2/3 days' time which would require at least one night stay at Kohima. The father of the petitioner also has no means and being an aged person, cannot accompany the petitioner to attend the proceeding at Kohima. Her mother is Page No.# 4/7 also not in a position to accompany her to Kohima. The petitioner herself has no means. It is only with the support of the maintenance allowance that has been provided by the respondent pursuant to the order of the Court of learned Judicial Magistrate, First Class, Nagaon, the petitioner and her child are surviving after paying the expenses towards studies of the child.
7. Mr. Biswas, learned counsel for the petitioner has submitted that if the proceeding of the Divorce Case No. 2/2016 is transferred from Kohima to Nagaon, the respondent will be in a difficulty as most of the witnesses who are going to depose in the case, instituted by him at Kohima, are required to be summoned for their appearances at Nagaon and in such an eventuality, there is every likelihood that the proceeding will get delayed and the respondent has to bear the expenses. Besides that, the petitioner has an old and ailing mother and an unmarried sister who reside at Dimapur, Nagaland and if he is made to travel to Nagaon, they would suffer hardship. It is further submitted by Mr. Biswas that after setting aside of the ex-parte decree, the Division Bench has directed the parties to appear before the proceedings at Kohima and in such view of the matter, the transfer of the proceeding at this stage is not called for. It is also submitted by Mr. Biswas that the respondent is presently out of work and he is no longer serving in Kohima.
8. I have considered the submissions of the learned counsel for the parties and also perused the materials made available on record.
9. Section 24, CPC has, inter-alia, provided the power to the High Court to transfer any suit or appeal or other proceeding pending in any Court subordinate to it and to transfer the same for trial for disposal to any Court subordinate to it and to dispose of the same at any stage, on an application by any of the parties and after notice to the parties and after hearing such of them, as desired to be heard.
10. This Court by a judgment and order dated 02.05.2016, passed in Tr.
Page No.# 5/7 Petition(C) No. 6/2018, has answered, on reference, that this Court has jurisdiction to exercise powers under Section 24, CPC read with Section 23(1) and Section 23(2), CPC to transfer a suit, appeal or any other proceeding from one of the four States under its jurisdiction to any one of the other States under its jurisdiction for trial. In view of the aforesaid decision by the Division Bench of this Court, this petition under Section 24, CPC for transfer of proceeding from the State of Nagaland to the State of Assam is maintainable.
11. In a petition seeking transfer of proceeding under Section 24, CPC from one place to another, more particularly, when its relates to a matrimonial proceeding it is relative convenience or inconvenience of the parties which is one of the relevant factors which is also to be taken into consideration. On examination, it is found that the petitioner has instituted the proceeding under the D.V. Act seeking maintenance and other orders before the Court of the learned Judicial Magistrate, Nagaon, Assam at a prior point of time than the institution of the proceeding before the Court of learned Principal Judge, Kohima, Nagaland by the respondent seeking the dissolution of the marriage. It is not in dispute that the respondent has appeared in DV Case No. 151/2016 at Nagaon and thereafter, has been participating in the proceeding. It is submitted by Mr. Biswas that the order by which the learned Court of Judicial Magistrate, Nagaon has provided interim maintenance of Rs. 12,000/- to the petitioner, has been duly complied with by the petitioner till date though he mounted a challenge against the same, albeit unsuccessfully, before the higher Courts.
12. The submissions made on behalf of the petitioner as regards the inconvenience she is likely to face if she is made to attend the proceeding at Kohima, has appeared to be relatively higher than the inconvenience that is likely to be faced by the respondent if he is made to appear in the proceeding at Nagaon, considering the fact that he has already been appearing at Nagaon in the DV Case No. 151/2016. Further, the averments made by the petitioner in Page No.# 6/7 this petition to that affected have gone unrebutted and uncontroverted, as the respondent has not traversed those by filing any counter affidavit. It is also noticed that the family members of the respondent do not reside at Kohima but at Dimapur, a place between Kohima and Nagaon and at Kohima, where the couple used to reside earlier, they used to stay at a rented house only. As regards the submission made on behalf of the respondent that the prayer for transfer of the proceeding is not maintainable in view of the order of the Division Bench setting aside the order dated 15.12.2016, it is seen that the Division Bench while setting aside the ex-parte decree, had observed that the parties to the proceedings would appear before the learned Principal Judge, Family Court, Kohima on 08.03.209 and on such appearance of the parties, the learned Trial Court would, thereafter, regulate with the proceedings in accordance with law. There is no embargo placed in that order which has prevented a Court of competent jurisdiction to exercise the power under Section 24, PC. In such view of the mater, the said submission made on behalf of the respondent is not acceptable.
13. As per submission of the respondent himself, he is out of job presently and this development has occurred subsequent to the institution of the divorce proceeding. As on date, since the petitioner is not required to be at Kohima for the purpose of his service, I find that the relative inconvenience that is likely to be faced by the respondent is lesser then the inconvenience likely to be faced by the petitioner, if the present petition is allowed.
14. Upon comparison of the convenience as well as inconvenience likely to be faced by the parties in the present case, I find that the balance of convenience is in favour of the petitioner and the case is more tilted in favour of the petitioner than the respondent. Accordingly, I deem it fit to allow this instant petition seeking transfer proceeding of Divorce Case No. 2/2016 from the learned Court of Principal Judge, Family Court, Kohima where it is presently pending, to the Court of learned District Judge, Nagaon. Accordingly, Page No.# 7/7 this petition stands allowed and resultantly, it is ordered that the proceeding of Divorce Case No. 2/2016, pending in the Court of Principal Judge, Kohima in the State of Nagaland stands transferred to the Court of learned District Judge, Nagaon at Nagaon, Assam.
15. The Court of learned Principal Judge, Family Court, Kohima shall make necessary arrangement to transmit the records of the proceeding of Divorce Case No. 2/2016 to the Court of learned District Judge, Nagaon expeditiously. On receipt of such records, the learned District Judge, Nagaon will notify the parties by sending notices to appear on a fixed date, as permitted by the business of the Court. It is provided that the learned District Judge, Nagaon will either decide the case himself or assign it to a learned Court of competent jurisdiction and thereafter, will proceed with the proceedings from the stage it was pending before the learned Court of Principal Judge, Family Court, Kohima, in accordance with law.
15. With the above observations made and directions issued, the instant petition stands disposed of. There shall be no order as to cost.
JUDGE Comparing Assistant