Gauhati High Court
Smti Geetashree Goswami vs Jadavananda Goswami on 12 September, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1) Tr.P .(C) No. 14/ 2017 - (Sm t. Subarna Bhattacharjee Vs. Sri
Siddartha Bisw as)
2) Tr.P .(C) No. 11/ 2017 - (M aya Das (Thapa) Vs. Dipankar
Das)
3) Tr.P .(C) No. 80/ 2016 - (M rs. Queen Hazarika Gogoi Vs. Sri
Uttam Gogoi)
4) Tr.P .(C) No. 77/ 2016 - (K abita Baid Vs. Dharam chand Baid)
5) Tr.P .(C) No. 25/ 2016 - (Sri Sum it Ranjan N ath Vs. Sm t.
Suchita Nath)
6) Tr.P .(C) No. 34/ 2017 - (Sm t. Anam ika Gogoi Vs. Sr M anoj
Saikia)
7) Tr.P .(C) No. 26/ 2017 - (Sm t. Dipannita Guha Das Vs. Sri
Bapan Das)
8) Tr.P .(C) No. 44/ 2017 - (Seem a M andal Vs. Ananda M andal)
9) Tr.P .(C) No. 47/ 2017 - (Sm t. Julie Rajbankhi Vs. Sri
I ndrajit Saikia)
10) Tr.P .(C) No. 3/ 2017 - (Anu P achani Vs. Chandan Siam )
11) Tr.P .(C) No. 27/ 2017 - (Sm t. Rashm i Rekha Chakraborty @
Rashm i R ekha M aitra Vs. Sri Subir M aitra)
12) Tr.P .(C) No. 56/ 2014 - (Sm t. Geetashree Gosw am i Vs. Sri
Jadavananda Gosw am i)
Page 1 of 32
13) Tr.P .(C) No. 71/ 2016 - (Sm t. P ronoti Borkataki Vs. Sri
M anash Jyoti Borpujari)
14) Tr.P .(C) No.81/ 2016 - (Sm t. Dim pal Upadhyay Vs. Sri
M eghraj Upadhyay)
15) Tr.P .(C) No. 30/ 2017 - (Sm t. P riyanka K illa M odi Vs. Sri
Saurav K illa)
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner(s): Mr. P.K. Deka, Mr. K.K. Dey, Mr. C. Baruah, Mr. M.R.
Adhikary, Mr. M. Dutta, Mr. R. Sarma, Mr. B. Sinha, Mr.
R.C. Paul, Mr. S. Alim, Mr. P.P. Borthakur, Mr. K.R.
Patgiri, Mr. H. Sarma, Ms. N. Upadhyay, and Mr. S.
Islam, Advocates.
For the respondent(s): Mr. S. Dutta, Senior Advocate, Mr. S. Kataki, Mr. S.K.
Borkataki, Mr. A.D. Choudhury, Mr. P. Sen, Ms. D. Borgohain, Ms. S. Kanungoe, Mrs. S. Barpatragohain, Mr. A Ganguly, Mr. S.D. Purkayastha, and Mr. B. Pushilal, Advocates Date of hearing: 21.08.2017, 06.09.2017,08.09.2017 Date of judgment: 12.09.2017 JUDGMENT AND ORDER (CAV) Heard Mr. P.K. Deka, Mr. K.K. Dey, Mr. C. Baruah, Mr. M.R. Adhikary, Mr. M. Dutta, Mr. R. Sarma, Mr. B. Sinha, Mr. R.C. Paul, Mr. S. Alim, Mr. P.P. Borthakur, Mr. K.R. Patgiri, Mr. H. Sarma, Ms. N. Upadhyay, and Mr. S. Islam, the learned Counsels appearing for the petitioners herein. Also heard Mr. S. Dutta, Senior Advocate, Mr. S. Kataki, Mr. S.K. Borkataki, Page 2 of 32 Mr. A.D. Choudhury, Mr. P. Sen, Ms. D. Borgohain, Ms. S. Kanungoe, Mrs. S. Barpatragohain, Mr. A Ganguly, Mr. S.D. Purkayastha, and Mr. B. Pushilal, the learned Counsels appearing for the respondents herein.
2) These petitions have been filed under Section 24 of the Civil Procedure Code, by which cases relating to matrimonial disputes and/or Guardianship dispute pending in various courts are sought to be transferred from one District to another.
3) The reason for hearing all the matters together was deemed necessitated in view of the recent judgment delivered by the Hon'ble Supreme Court of India in the case of Krishna Veni Nagam vs. Harish Nagam reported in (2017) 4 SCC 150. This judgment has been circulated to this Court by the Registry of the Hon'ble Supreme Court of India. It would be relevant to refer to paragraphs -13 to 20 thereof, which is extracted below:
"13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd.[(2003) 4 SCC 341] this Court observed:
"19. In Spiliada Maritime case[Spiliada Maritime Corpn. V. Cansulex Ltd., (1986) 3 All ER 843: 1987 AC 460 : (1986) 3 WLR 972(HL)] the House of Lords laid down the following principle:
"The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice......"
The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court Page 3 of 32 concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried."
Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed. [Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, para-30].
14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing. [State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601:
2003 SCC (Cri) 815; Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284: 2005 SCC (Cri) 705; Budhadev Karmaskar (4) v. State of W.B., (2011) 10 SCC 283 : (2012) 1 SCC (Cri) 285; Malthesh Gudda Pooja v. State of Karnataka, (2011) 15 SCC 330: (2014) 2 SCC (Civ) 473].
15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.
16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in Page 4 of 32 the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.
17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.
18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/ respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-
i) Availability of video conferencing facility.
ii) Availability of legal aid service.
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.
iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled "Harish Nagam vs. Krishna Veni Nagam"
pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.
20. The Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action."
Page 5 of 324) On enquiry, this Court has been informed that save and except four districts of Assam, viz., N.C. Hills Autonomous District, Karbi Anglong Autonomous District, Baska District and Chirang District, all other District Courts have already set up with Video Conference facilities. Under the aforesaid background, this Court deems fit that analogous hearing of this cases be taken up so that there can be a threadbare discussion on the matter. The various counsels for the petitioner's side had voiced their grievance regarding the adoptability of the Video Conference facilities for the common public in the State of Assam, for which, the learned counsels for all the petitioners had argued in favour of transfer of the matrimonial proceedings instead of compelling the petitioners to accept the Video Conference facility for trial of cases.
5) The following causes for their concern have been cited by the learned counsels for the petitioners -
a. It is submitted that by and large in all cases, the wives who are in distress and who were either driven out from the matrimonial home or compelled to leave their matrimonial homes for variety of reasons, are the petitioners herein. The petitioners have prayed for transfer of the proceedings to the place where they are presently residing. b. In majority of cases, the distressed wife, has no earning capacity. They claim to be either dependent to their parents or their brothers for their living. In many cases, the wives are also burdened to take care of their minor children, their education and healthy growth, etc. It is claimed that in many cases, the issue of maintenance have not been settled, and even if any maintenance is allowed from their estranged husband, the money awarded is a mere pittance, which is not sufficient to take decent care of themselves, not to speak of minor children.
c. It is submitted that being females, they have to face a great difficulty to travel from their parental home to attend the Court in a distant place away from their residence.
Page 6 of 32d. The counsels have also asked this court to take notice of the geographical situation of the State, further submitting that there are three corners of the State and in order to travel from one corner of the State to the other, it may take anything between 110-12 hours to 24 hours by bus and by train. It is also submitted that few Districts of the State stay inundated by flood water for 1-2 months in a year for which normal life is disrupted for a total of 3-4 months due to the annual calamity of flood. During these times, females not only feel insecure for travelling alone in nigh-super and in trains, but during these times of distress, as the male members of their parental family are already having difficult times, they cannot spare time to escort the females to court at a distant place.
e. It was submitted that the court should also take note of female literacy in the State as well as the educational background of the wives in each case before permitting trail by video-conferencing. It is submitted that the uneducated and not too much technology savvy ladies would find it difficult to conduct a trial under Video Conferencing unless they are assisted by the equally tech-savvy counsel. The ladies, who are left to be deprived without any legal support would find it very difficult to conduct a trial in Video Conferencing.
f. It is also submitted that if trial by video- conferencing is allowed, the ladies would have to bear with double financial burden, one for one set of counsel for representing them before the trial court, to file pleadings, petitions, documents, argument, and another set of counsels at the Town/ City/ Sub-Division, where there are presently residing to give legal counselling and to guide them through the entire proceedings, to prepare written statement, evidence- on- affidavits. She would have to keep constant touch with both sets of the counsel to keep herself updated about the dates posted in the case and to monitor the date-wise progress of the case.
Page 7 of 32g. It is submitted that even if trial is conducted by video-conferencing, there is no denial that the lady would still be compelled to travel from time to time to the town where the trial is taking place for the purpose of paying fees of the counsel as well as for filing various petitions requiring swearing of affidavit in support of the petitions, unless this court completely waives the requirement of filing petitions with original signature.
h. It is urged that a lady, who is financially starved and facing social stigma connected with a lady whose husband has left her, and lack of support from her own parental family, such a lady would be lucky if she can engaged advocates at both her nearest court as well as the town where litigation is filed. It would be still difficult to organize two sets of unknown counsel to work in the tandem with each other with the required coordination, because if the two sets of lawyers do not coordinate with each other then, there are no chances of getting a fair trial. There is a remote chance that a lady may get the service of a counsel, who is willing to take assignment only a date wise basis without any continuity of engagement, because it is a common practice that counsel is engaged for the entire life of litigation, and no good counsel with some reputation would consent to take steps only on as and when occasion arises. Therefore, if video- conferencing is allowed, there would be additional financial burden on the wife to engage counsel at two different places, keep travelling to and fro.
i. It is submitted that every lady is not staying in Towns/ City/ Sub- Divisional Towns, some of them would have to travel some distance from their villages to reach the nearest Court having Video- conferencing facilities.
j. It is further argued that it would be a risky affair for a lady to send the original documents by post to the town where litigation is going on as it may get lost during transit.
Page 8 of 32k. It is submitted that it would be equally risky for a lady to believe that pleadings or petitions sent by post would reach the Court on time and the office staff receiving post would promptly open postal envelopes and tag such pleadings and petitions on record on the date fixed. Therefore, unless the lady can successfully interact with Presiding Officer of Court at around 10.30 am, she would not know what would happen to her case in course of the day. Without permitting interaction at a fixed time, no court would adjourn a case merely because of postal delay.
l. The ground reality of lack of uninterrupted electricity supply, lack of uninterrupted internet connectivity must also be addressed, as to what would happen if on a particular day, due to mobile link failure, electricity failure and internet link failure a remote station litigant cannot get connected even over mobile phone to inform Court Managers about internet/ mobile link failure. Examples were cited of link failure in banks which stops all transactions including ATM transactions, connectivity problems faced while e-filing of Income Tax returns and GST returns in recent times, which became news headlines.
6) It is also submitted that the judgment in Krishna Veni Nagam (supra) was by a Division Bench of the Hon'ble Supreme Court, which had not over- ruled various orders by co-ordinate Bench of equal strength, whereby the Hon'ble Supreme Court had deemed it fit to transfer matrimonial cases in the place of choice of the wife. It is submitted that if permitted, they are ready to refer to many cases where such cases were transferred. Hence, they submit that the case of Krishna Veni Nagam(supra) should be treated as a judgment per-incurium, which had not taken note of the previous orders by co-ordinate Benches of equal strength, allowing transfer of matrimonial cases.
Page 9 of 327) All the counsels for the petitioners' side are unison in submitting that trial by video- conferencing may be possible for some of the parties, but by and large, unless such trial is started at an experimental basis in one or two given case where parties are consenting, the permitting all trial by video- conferencing may not be the ideal solution for the State of Assam, which is technologically not so advanced like metropolitan cities like Mumbai and New Delhi.
8) Mr. PK Deka, the learned counsel for one of the petitioner has submitted that the Hon'ble Supreme Court in the case of Krishna Veni Nagam (supra) did not disturb the power and jurisdiction of this Court under Section 24 CPC to transfer a suit from one court to another within its jurisdiction in the State. He has submitted that the said judgment should be considered to be prospective because of what was stated in paragraph-18 thereof. It is submitted that in this particular paragraph -18, the Hon'ble Supreme Court was referring to incorporate safeguard for ensuring that summoning of defendants /respondents does not result in denial of justice and therefore, ordered for safeguards to be mentioned while issuing of summonses. However, in his case, the summons stage was over and the trial was going on. By citing various cases, where various High Courts in the Country as well as the Hon'ble Supreme Court of India had transferred matrimonial proceedings to the city/town where the wife was residing. He specifically relies on the following four cases:
a. Rabindra Kaur v. Jitendra Singh, AIR 2000 SC 3403. b. Sumita Singh Vs. Kumar Sanjay, AIR 2002 SC 396.
c. Durga Pandit Vs. Pradip Kumar Pandit, (2004) 1 GLT 440. d. Pallavi Saikia Vs. Mriganka Bharali, (2006) SUPP GLT 425.
9) Mr. B. Chakraborty, the learned counsel appearing for one of the petitioner has submitted that the case of Krishna Veni Nagam (supra) may not be made applicable in these cases, firstly, because the Hon'ble Supreme Court was passing an order under Section 25 CPC and it was not deciding Page 10 of 32 the matter under Section 24 CPC. Moreover, the consistent views of the Hon'ble Supreme Court of India as well as of the various High Court including this Court that in respect of matrimonial cases, about the theory of considering the convenience of wife had not been diluted in the case of Krishna Veni Nagam (supra).
10) Mr. R. Sharma, the learned counsel appearing for one of the petitioner has submitted that the husband is a police at the district of Nagaon and therefore, he carries with him a clout in his hometown and therefore, out of fear of the police husband, her witnesses may not be inclined to give evidence at Nagaon and therefore, it is a fit case for transfer of the proceeding to Tezpur in the district of Sonitpur. He also relies on the case of Bharatiben Ravibhai Rav Vs. Ravibhai Govindbhai Rav decided on 05.05.2017 and reported in (2017) 6 SCC 785 to project that in the said case, the Hon'ble Supreme Court did not deem it fit to permit Video Conference and transfer the case from one district to another for the convenience of wife and also considering the fact that when another proceeding is pending between the parties in the courts where the wife is residing and in this connection, he has submitted that at present three separate proceedings initiated by the wife is currently pending at Tezpur.
11) Per contra, arguing in support of the idea of trial by video conferencing, it is submitted that it is equally true for the husband to travel to the place of choice of the wife and to face trial at a distant place. It is submitted that the husband are engaged in some service, profession, business or other vocation to earn his livelihood. While it would not be inconvenient for the wife to travel, if she is unemployed, but it would be very difficult for the husband to avail leave to travel to attend matrimonial cases, which is likely to affect the service carrier, business, profession or vocation. It is submitted that in appropriate cases, if the problem faced by the wife is genuine, the courts may, on case to case basis, order a reasonable cost of Page 11 of 32 litigation, travel, lodging and food for the wife, children (if any), and an escort.
12) Mr. Sishir Dutta, the learned senior counsel for one of the respondent has referred to the case of M.N. Murthy v. State of Karnataka, (2003) 7 SCC 514 to argue that unless the order specifically provides for prospective overruling, all judgments are deemed to have retrospective effect and, as such, the argument by the learned counsel for the petitioners that the case of Krishna Veni Nagam (supra) has prospective application is not sustainable in view of the ratio laid down in the case of M.N. Murthy (supra).
13) Mr. Saurav Kataki, the learned counsel for one of the respondent has submitted that Section 24 CPC is a procedural law and therefore, in a strict sense, Section 24 is not a statutory law but a procedural law. It is submitted that it is a well settled law that procedural law is a handmade of justice. However, when the Hon'ble Supreme Court of India has given a direction as to what procedure should be adopted in case of transfer of matrimonial suit, in that case, the said decision becomes a law binding on all Courts and Tribunals under the provisions of Article 141 of the Constitution of India. Therefore, the discretion which was hitherto available to the High Court while deciding the application filed under Section 24 CPC is no longer available and a question of law will arise whether in light of the direction contained in the case of Krishna Veni Nagam (supra), whether this Court has the power or jurisdiction to carve out any exception. He further submits that all other cases including the case of Bharatiben Ravibhai (supra), cited by the counsels for various petitioners can be distinguished from the ratio of the case in Krishna Veni Nagam (supra), because all other cases are judgment in personam, but judgment in the case of Krishna Veni Nagam (supra), because of being circulated to all the High Courts, should be treated a judgment in rem and it should be mandatorily treated as a direction under Article 141 of the Constitution of India.
Page 12 of 3214) All the learned counsels for the parties have argued their respective arguments but their submissions are consonance with the submission already recorded above, it is not deemed necessary to reiterate those arguments to burden this order.
15) Having considered the arguments made by all the learned counsels in all the cases, this Court would like to state that it is not aloof from the realities of life and that it is insensitive with the various problems the wives have to face once they were driven out from the matrimonial house and the inevitable social stigma and financial and mental anxiety suffered by her to maintain a litigation as well as to minor children, if any, born out of the wedlock. However, the majority of objections raised by the learned counsels for the petitioners appeared to be answered by the Hon'ble Supreme Court of India in pargarphs-14 to 18 of the case of Krishna Veni Nagam (supra), which are already extracted above.
16) However, it must be noted that even in the case of Krishna Veni Nagam (supra), the Hon'ble Supreme Court of India deemed it fit to transfer the case of the husband, i.e. Harish Nagam from Jabalpur, Madhya Pradesh to Hyderabad, Andhra Pradesh. Therefore, the question arises, that when the Hon'ble Supreme Court of India in the said case of Krishna Veni Nagam (supra), did not deem it fit not to transfer the matrimonial proceedings by ordering trial by video-conferencing, and when the Hon'ble Supreme Court of India in the subsequent case of Bharatiben Ravibhai Rav (supra), where the matrimonial proceedings was transferred from Ahmedabad (Gujrat) to Dungarpur (Rajasthan), there is no doubt that the Hon'ble Supreme Court of India deemed it fit to exclude some cases from video-conferencing, where the parties did not consent for such trial. Hence, this Court is of the view that in cases, where the wife has reservations from trial on video- conferencing, it would be just and proper to transfer the proceedings from one place to another, instead of compelling a trial by video-conferencing.
Page 13 of 3217) This court has also taken note of the practical problems and difficulties expressed by the learned counsels for the petitioners. To mention a few, there is no provision under the Gauhati High Court Rules as well as Civil Court Rules & Orders of the Gauhati High Court relating to trial by video-conferencing. There are no provisions of sending petitions by e-mail and for its acceptance by Courts. There is no provision to empower a trial court to defer the proceedings merely because it receives communication over phone call to Court Manager of by e-mail that pleadings or petitions had been despatched by post. The subordinate Court staffs have not been sensitized to promptly open postal envelopes and urgently tag the petitions received by post in court record and to place them before the Court. The Presiding Officers of the Courts are not yet sensitized to wait till such time in the day till postal service is usually made to court premises, for which there is every possibility that a court may pass orders in first half of the day and the postal delivery containing petitions and pleadings being received after orders are passed. There is no provisions in Gauhati High Court Rules as well as Civil Court Rules & Orders of the Gauhati High Court about what would happen if a party agreeing for trial by video-conference sends a pleading, petition or document by post and the postal envelope is misplaced and what would be the procedure for reconstruction of documents not received by court, but lost in postal transit. There are no provisions in the Gauhati High Court Rules as well as Civil Court Rules & Orders of the Gauhati High Court to make a Court Manager as an agent for the out-station litigant, so as to enable the Courts to accept submissions made by a Court Manager on the basis of telephonic message or e-mail received from a litigant, and to pass orders on the basis of any submissions made before the Court. The procedure of regular trial by Video-conferencing, in the opinion of this court, must be incorporated in the appropriate Rules governing trial like Gauhati High Court Rules as well as Civil Court Rules & Orders of the Gauhati High Court, because it is one thing to have an occasional session by Video- Conferencing like delivering judgment, one or two session of cross-
Page 14 of 32examination of accused who for various reasons like internal security, or to maintain peace and tranquillity, is not desired to be moved from prison, or video-conferencing with a hospitalized person, periodical viewing of under- trial accused lodged in jail by concerned Magistrates, etc., to name a few. Therefore, it is hoped that in future, some of the issues are addressed by this Court so that appropriate Rules are framed for facilitating video- conferencing, as suggested by the Hon'ble Supreme Court of India.
18) Moreover, in some cases, where there are pending litigations between the parties in the place where the wife is residing as was the facts in the case of Bharatiben Ravibhai (supra), where there was a pending litigation at Dungarpur (Rajasthan), for which the matrimonial proceedings was transferred or in one of the present case in hand, where the husband is a police personnel and the wife apprehends threat. This Court cannot shut its eyes to such practical ground realities.
19) Moreover, it has come to the notice of this Court that the Hon'ble Supreme Court of India in the case of Santhini Vs. Vijaya Venketesh by an order dated 09.08.2017 (Para-19), has referred the case of Krishna Veni Nagam (supra) to the Hon'ble The Chief Justice of India to consider referring the said case before a larger Bench. The outcome of such reference is not known. The relevant para of the said order is quoted below:-
"19. To what extent the confidence and confidentiality will be safeguarded and protected in video conferencing, particularly when efforts are taken by the counsellors, welfare experts, and for that matter, the court itself for reconciliation, restitution of conjugal rights or dissolution of marriage, ascertainment of the wishes of the child in custody matters, etc., is a serious issue to be considered. It is certainly difficult in video conferencing, if not impossible, to maintain confidentiality. It has also to be noted that the footage in video conferencing becomes part of the record whereas the reconciliatory efforts taken by the duty-holders referred to above are not meant to be part of the record. All that apart, in reconciliatory efforts, physical presence of the parties would make a significant difference. Having regard to the very object behind the establishment of Family Courts Act, 1984, to Order XXXIIA of the Code of Civil Procedure and to the Page 15 of 32 special provisions introduced in the Hindu Marriage Act under Sections 22, 23 and 26, we are of the view that the directions issued by this Court in Krishna Veni Nagam (supra) need reconsideration on the aspect of video conferencing in matrimonial disputes."
20) Therefore, in the overall view of the matter, as the case of Krishna Veni Nagam (supra) does not lay down a law prohibiting transfer of any case and instead follow the course of trial by video-conferencing, this court is of the view that until some provisions are made in the Gauhati High Court Rules as well as Civil Court Rules & Orders of the Gauhati High Court in respect of full trial by video-conferencing, it would not be in the interest of the litigants of the State of Assam to mandatorily undertake a full length trial by video- conferencing as an alternative of transfer of suits. The provisions of Section 24 CPC having not been struck-off, the power of this Court to exercise jurisdiction under Section 24 CPC to transfer suits and proceedings cannot be taken away in appropriate cases. In light of the various orders passed by the Hon'ble Supreme Court of India in the various cases referred herein before, with greatest respect to the Hon'ble Supreme Court of India, as the case of Krishna Veni Nagam (supra) is under reconsideration of the said Hon'ble Court and as even in the said judgment, the matrimonial case was indeed transferred from Jabalpur to Hyderabad, in the absence of law laid down curtailing the power of this Court to exercise jurisdiction under Section 24 CPC, this court is inclined to continue to exercise jurisdiction under Section 24 CPC.
21) With the aforesaid observations, the individual cases are now taken up:-
i. Tr.P .(C) No. 14/ 2017 - Sm t. Subarna Bhattacharjee Vs. Sri Siddartha Bisw as - In this case, the petitioner- wife is seeking transfer of proceedings of F.C.(C) Case No. 77/2017 from the Court of Principal Judge, Family Court, Kamrup (M), Guwahati to the Court of Principal Judge, Family Court, Silchar. She is a Doctor and associated with works of National Rural Health Mission. She has a Page 16 of 32 minor baby. Petitioner has no brother, but lives with aged parents. She claims that marriage was solemnized at Silchar and after marriage, she was living in their matrimonial home and Kolkata and the case was filed at Guwahati to harass her and the Court at Guwahati had no jurisdiction. In the affidavit in opposition, the respondent has not denied that after marriage at Silchar, their matrimonial home was not at Kolkata. Therefore, this court deems it fit to transfer the proceedings of F.C.(C) Case No. 77/2017 from the Court of Principal Judge, Family Court, Kamrup (M), Guwahati to the Court of Principal Judge, Family Court, Silchar. The learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati shall transfer the records of F.C.(C) Case No. 77/2017 to the Court of Principal Judge, Family Court, Silchar. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the Court of Principal Judge, Family Court, Kamrup (M), Guwahati for transfer of the said proceedings.
The parties, who are represented by their counsel, shall appear before the Court of Principal Judge, Family Court, Cachar, Silchar, on 03.11.2017 without any further notice for appearance and by producing certified copy of this order, shall seek further instruction from the said learned Court.
ii. Tr.P .(C) No. 11/ 2017 - M aya Das (Thapa) Vs. Dipankar Das -
In this case, the petitioner/wife is the defendant in FC (Civil) Case No.309/16 pending before the learned Principal Judge, Family Court, Silchar, Cachar, which is a petition under Section 9 of the Hindu Marriage Act, 1955. The petitioner has prayed for transfer of the case from the Court of learned Principal Judge, Family Court, Cachar, Silchar to the court of learned Principal Judge, Family Court at Dimapur, Nagaland. In this case, this Court finds that this is a case for the transfer from one State to another. In this regard, this Court in the case of Pomi Sengupta vs. Biswajit Sengupta, (2015) 6 GLR Page 17 of 32 396: (2016) 1 GLT 627, had discussed the jurisdiction of the Court under Section 24 CPC and had laid down that this Court does not have jurisdiction to make inter-State transfer of the suites and proceedings. Therefore, such transfer, in the considered opinion of this Court can only be made under Section 25 CPC. Therefore, by following the precedent of the case of Pomi Sengupta (supra), this Court is not inclined to transfer the suit to outside the State although subordinate courts in the State of Nagaland are within the jurisdiction of this Court, but still, it lies outside the State of Assam.
The parties, who are represented by their counsel, shall appear before the Court of Principal Judge, Family Court, Cachar, Silchar, on 03.11.2017 without any further notice for appearance and by producing certified copy of this order, shall seek further instruction from the said learned Court.
iii. Tr.P .(C) No. 80/ 2016 - M rs. Queen Hazarika Gogoi Vs. Sri Uttam Gogoi - In this case, the petitioner/wife is the defendant in Misc. Case (G) No.1/15 pending before the court of learned District Judge, Dibrugarh, which is a petition under Section 10 of the Guardians and Wards Act, 1890. The petitioner has prayed for transfer of the case from the court of learned District Judge, Dibrugarh to the court of learned District Judge, Sivasagar. The respondent/husband herein is reported to be a police personnel serving as a constable and the minor child (aged 4 years and 5 months, as no 16.02.2015, the date of filing of the guardianship petition) is now residing with the petitioner/wife. Moreover, the petitioner has claimed that she has become entitled to receive maintenance from the husband as per the order passed by the learned Sub-Divisional Judicial Magistrate, Nazira in Misc. Case No.2/2014 filed under Section 125 Cr.P.C. (at one place also mentioned as order passed by the learned Munsiff-cum-Judicial Magistrate, First Class, Nazira). It appears that the respondent had Page 18 of 32 also instituted Criminal Revision No.8(1)/2015 before the learned Sessions Judge, Sivasagar. Therefore, in this case, this Court finds that the ratio of the case Bharatiben Ravibhai Rav (supra) is found to be applicable. Therefore, the proceedings of the Misc. Case (G) No.1/15 under Section 10 of the Guardians and Wards Act pending in the court of learned District Judge, Dibrugarh is transferred to the learned District Judge, Sivasagar, who will have power to delegate it to another appropriate and competent court.
The learned Court of District Judge, Dibrugarh shall transfer the records of Misc. Case (G) No.1/15 to the learned Court of District Judge, Sivasagar. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Dibrugarh for transfer of the said proceedings.
The parties, who are represented by their learned counsels are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Dibrguarh on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court.
iv. Tr.P .(C) No. 77/ 2016 - K abita Baid Vs. Dharam chand Baid -
The petitioner/ wife is the defendant in T.S.(D) No. 17/2016, pending before the learned Court of District Judge, Bongaigaon, which is a petition under Section 13(1)(i-a) and (i-b) of Hindu Marriage Act, 1955, seeking dissolution of marriage by divorce and other reliefs. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Bongaigaon to the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati. It is stated that the petitioner has shifted her residence from Kokrajhar to Guwahati for better treatment as she is suffering from "Prolapse Intervertebral Disc". She also had to shift her place of residence from her parental home because her status as a lady living Page 19 of 32 separately from husband without any children is causing stigma to the family, which is hindering the marriage of her sister. The respondent has contested the case by filing Affidavit- in- opposition, stating that the petitioner is contesting Misc. Case No. 42/2016, which is an application under section 125 Cr.P.C. at Bongaigaon. It is also stated that the respondent is an orthopedically challenged person who cannot move without an escort and for the said purpose, the respondent has relied on a concession certificate annexed to his affidavit- in- opposition. Therefore, considering the un-denied statement that the petitioner is contesting Misc. Case No. 42/2016, under section 125 Cr.P.C. at Bongaigaon and that the respondent is an orthopedically challenged person, and on further considering the fact that the respondent has sought for transfer only because she has changed her residence, this Court is of the view that this is not a fit case for the transfer of the proceedings of T.S.(D) No. 17/2016, pending before the learned Court of District Judge, Bongaigaon. In this case, this Court finds that the ratio of the case Bharatiben Ravibhai Rav (supra) is found to be applicable as the petitioner is pursuing Misc. Case No. 46/2016 under Section 125 Cr.P.C. at Bongaigaon. Hence, this application stands dismissed.
The parties, who are represented by their learned counsels are directed to appear in person or through duly instructed pleader before the court of the Court of the learned District Judge, Bongaigaon on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court.
v. Tr.P .(C) No. 25/ 2016 - Sri Sum it R anjan Nath Vs. Sm t.
Suchita Nath - The petitioner- husband is seeking transfer of the proceedings of TS 93/2013 from the learned Court of District Judge, Karimganj to the Court of Principal Judge, Family Court, Kamrup (M), Guwahati. It is projected that TS 96/2013 between the parties was compromised and disposed of by order dated 09.06.2014 passed by Page 20 of 32 the learned District Judge, Karimganj, by which the parties agreed to live a conjugal life. But the same did not last. Thereafter, a decree of divorce was validly passed by the learned Court of Principal Judge, Family Court, Guwahati by order dated 08.09.2015 in F.C.(Civil) Case No. 148/15. However, despite the decree, the respondent- wife has filed Title (Restitution) Suit No. 14/2016 under section 9 of the Hindu Marriage Act, 1955 before the learned Court of District Judge, Karimganj, again seeking restitution of conjugal rights. The petitioner is a personnel of Sashastra Seema Bal (SSB). The respondent- wife has contested this application by filing Affidavit- in- Opposition, claiming that the decree of divorce was obtained by fraud. On perusal of the petition for divorce, being F.C.(C) 148/2015 as well as the agreement dated 29.06.2015 for divorce, both filed by the respondent and copy of order dated 08.09.2015 passed in F.C.(C) Case No. 148/2015 that the respondent has not been paid any alimony or maintenance. The petitioner being a member of Sashastra Seema Bal, can undertake the journey to Karimganj, but it would be extremely difficult for the respondent to travel from Karimganj to Guwahati. Therefore, this court finds that this is not a fit case for transfer of the proceeding.
However, considering the submissions made by the learned counsel for the petitioner that there is a decree of divorce operating, the petitioner is permitted to move the learned Court of District Judge, Karimganj with an appropriate application for considering the maintainability of the Title (Restitution) Suit No. 14/2016. Till the decision thereon, the petitioner shall also be at liberty to move the said learned court for exemption from any personal appearance. With the aforesaid observation, this application stands dismissed.
vi. Tr.P .(C) No. 34/ 2017 - Sm t. Anam ika Gogoi Vs. Sr M anoj Saikia - The petitioner/ wife is the defendant in Mat. Suit (Restitution) No. 72/2016, pending before the learned Court of Page 21 of 32 District Judge, Nagaon. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Nagaon to the learned Court of District Judge, Sonitpur, Tezpur. It is stated that the respondent is a police personnel and has sufficient clout at Nagaon, which is an intimidating factor for the petitioner to produce her witnesses at Nagaon. It is submitted that she has recently joined as a Teacher in Tezpur Govt. HS School and has taken up a rented accommodation at Tezpur and her minor daughter is also studying at Tezpur and she has no one to look after the minor daughter if she is to go to Nagaon to attend the case. On threat and assault received by her, she has instituted police case, which is now registered as GR Case No. 3262/16 - State Vs. Manoj Saikia, and is pending before the learned Court of Chief Judicial Magistrate, Tezpur. No one has entered appearance for the respondent although notice was served on his police station. Considering the statement that the respondent is a police personnel and the petitioner apprehends threat, and moreover, as GR Case No. 3262/16 is stated to be pending before the learned Court of Chief Judicial Magistrate, Tezpur, this court is of the view that the ratio of the case Bharatiben Ravibhai Rav (supra) is applicable. Therefore, the proceedings of Mat. Suit (Restitution) No. 72/2016, pending before the learned Court of District Judge, Nagaon stands transferred to the learned Court of District Judge, Sonitpur, Tezpur. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Nagaon for transfer of the said proceedings. As the respondent herein has not entered appearance, the learned Court of District Judge, Nagaon, shall fix the date of appearance of the respondent (i.e. petitioner in T.S.(R) 72/16) before the learned Court of District Judge, Sonitpur on 03.11.2017.
The petitioner, who is represented by her learned counsel is directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Sonitpur, Tezpur on Page 22 of 32 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Tezpur, would be at liberty to transfer the case before any other competent Court for trial.
vii. Tr.P .(C) No. 26/ 2017 - Sm t. Dipannita Guha Das Vs. Sri Bapan Das - The petitioner/ wife is the defendant in T.S. (M) No. 7/2017. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Jorhat to the learned Court of District Judge, Hojai. It is submitted that the petitioner had filed an application under section 12 of the Protection of Women from Domestic Violence Act, 2005, being D.V. Case No. 12/2006, which is pending before the learned Court of Judicial Magistrate, 1st Class, Hojai, which is being contested by the respondent. It is submitted that the T.S. (M) 7/2017 was filed to harass her. It is submitted that the petitioner has no source of income and has no one to escort her to Jorhat. The respondent has filed an affidavit- in- opposition and has denied the allegations. Considering the statement that the petitioner is having no source of income and no one to escort her to attend court proceedings at Jorhat, this Court is inclined to transfer the proceedings of T.S. (M) 7/2017 from the learned Court of District Judge, Jorhat to the learned Court of District Judge, Hojai. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Jorhat for transfer of the said proceedings.
The parties, who are represented by their learned counsel are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Hojai on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Hojai, would be at liberty to transfer the case before any other competent Court for trial.
Page 23 of 32viii. Tr.P .(C) No. 44/ 2017 - Seem a M andal Vs. Ananda M andal -
The petitioner/ wife is the defendant in T.S. (M) No. 8/2017. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Barpeta to the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati. It is submitted that the petitioner is now residing at her parental home at Guwahati with her minor daughter. It is submitted that the petitioner had filed an application under section 498(A) of the Indian Penal Code, being C.R. Case No. 4213c/2009, which is pending before the learned Court of the Chief Judicial Magistrate, Kamrup (M), Guwahati. The petitioner had also filed F.C.(Crl.) Case No. 178/2010 for maintenance under Section 125 Cr.P.C. before Principal Judge, Family Court, Kamrup (M), Guwahati. On assurance that the petitioner would not be tortured and there would be no demand for dowry, the above two cases were closed. One again she was driven out from her house and she filed F.C.(Crl) Case No. 83/2011, which was again closed in view of compromise. She was again compelled to take shelter in her parental home and she filed F.C.(Crl) Case No. 126/2013 for maintenance. It is submitted that thereafter, the respondent had T.S. (M) 8/2017 was filed to harass her. It is submitted that the petitioner has no source of income and has no one to escort her to Barpeta and as her mother was old and ailing, there was no one to look after the minor son. The respondent has not contested the application. Considering the statement that the petitioner is having no source of income and no one to escort her to attend court proceedings at Barpeta, this Court is inclined to transfer the proceedings of T.S. (M) 8/2017 from the learned Court of District Judge, Barpeta to the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Barpeta for transfer of the said proceedings.
Page 24 of 32As the respondent herein has not entered appearance, the learned Court of District Judge, Barpeta, shall fix the date of appearance of the respondent (i.e. petitioner in T.S.(D) No. 8/2017) before the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati on 03.11.2017.
The petitioner, who is represented by her learned counsel is directed to appear in person or through duly instructed pleader before the court of the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Hojai, would be at liberty to transfer the case before any other competent Court for trial.
ix. Tr.P .(C) No. 47/ 2017 - Sm t. Julie R ajbankhi Vs. Sri I ndrajit Saikia - In this case, the petitioner/wife is the defendant in Misc. (G) Case No.24/2017 pending before the court of learned Principal Judge, Family Court, Kamrup (M), Guwahati which is a petition under Section 7 of the Guardians and Wards Act, 1890. The petitioner has prayed for transfer of the said case to the Court of the learned District Judge, Jorhat. It is submitted that the marriage of the parties has been dissolved by judgment dated 26.05.2014, passed by the learned Court of District Judge, Jorhat in T.S.(M) 34/2013. The petitioner has filed a case for maintenance, which is registered as Misc. (J) Case No. 51/2014 arising out of TS(M) 34/2013, which is stated to be at evidence stage. It is stated that the petitioner has now received summons in the guardianship case. It is also stated that the petitioner has no independent source of income and she and her minor son is living like a burden on her old and ailing parents. Her younger brother has to go out for business purpose. Hence, there is no one to escort her to attend court case at Guwahati. Therefore, in this case, this Court finds that the ratio of Page 25 of 32 the case Bharatiben Ravibhai Rav (supra) is found to be applicable. The respondent is a govt. employee. Therefore, the proceedings of the Misc. (G) Case No.24/2017, pending in the court of learned Principal Judge, Family Court, Kamrup (M), Guwahati is transferred to the Court of the learned District Judge, Jorhat, who will have power to delegate it to another appropriate and competent court.
The learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati, shall transfer the records of Misc. (G) Case No. 24/ 2017 to the learned Court of District Judge, Jorhat. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Dibrugarh for transfer of the said proceedings. As the respondent herein has not entered appearance, the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati, shall inform the learned counsel for the petitioner in Misc. (G) Case No. 24/2017 that the date of appearance before the learned Court of District Judge, Jorhat is fixed on 03.11.2017.
The petitioner, who is represented by her learned counsel is directed to appear in person or through duly instructed pleader before the court of the learned Court of District Judge, Jorhat on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court.
x. Tr.P .(C) No. 3/ 2017 - Anu P achani Vs. Chandan Siam - The petitioner/ wife is the defendant in T.S. (M) No. 133/2016. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Tinsukia to the learned Court of District Judge, Lakhimpur, North Lakhimpur. The parties have one son and one daughter. It is submitted that the petitioner had filed a maintenance case, being Crl. Misc. Case No. 62/2015 before the Court of the learned Chief Judicial Magistrate, Lakhimpur, North Lakhimpur and maintenance was allowed. Against the said order, at Page 26 of 32 present Crl. Revision Petition No. 8/2016 is pending before this Court. Then, the respondent filed T.S.(Judicial Separation) Case No. 4/2016 before the learned Court of District Judge, Lakhimpur, North Lakhimpur, which was dismissed by order dated 28.07.2016. Thereafter, the respondent has forcefully taken away their daughter from her custody. Thereafter, the present suit was filed by the respondent. It is submitted that the respondent is also a permanent resident of Village- Achuchawal Gaon, Dist. Lakhimpur. It is submitted that the petitioner has no independent source of income and has no one to escort her to Tinsukia. Therefore, in this case, this Court finds that the ratio of the case Bharatiben Ravibhai Rav (supra) is found to be applicable. Considering the statement that the petitioner is having no independent source of income and no one to escort her to attend court proceedings at Tinsukia, this Court is inclined to transfer the proceedings of T.S. (M) No. 133/2016 from the learned Court of District Judge, Tinsukia to the learned Court of District Judge, Lakhimpur, North Lakhimpur. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Tinsukia for transfer of the said proceedings.
The parties, who are represented by their respective learned counsel are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Lakhimpur, North Lakhimpur on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Lakhimpur, North Lakhimpur, would be at liberty to transfer the case before any other competent Court (if any) for trial.
xi. Tr.P .(C) No. 27/ 2017 - Sm t. R ashm i R ekha Chakraborty @ R ashm i R ekha M aitra Vs. Sri Subir M aitra - The petitioner/ wife is the defendant in T.S. (M) No. 28/2017 under Section Page 27 of 32 13(1)(iii) of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of serious mental disorder of the petitioner. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Sonitpur, Tezpur to the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati. The parties have no issue. The petitioner is now living with her parents. It is submitted that the petitioner has no independent source of income and as her parents are aged, she has no one to escort her to Tezpur to attend the Court proceedings.
Considering the statement that the petition for divorce is filed on the ground that the petitioner is not mentally sound, there is no doubt that the petitioner will face more difficulty in defending the case at Tezpur. Hence, this Court is inclined to transfer the proceedings of T.S. (M) No. 28/2017 from the learned Court of District Judge, Sonitpur, Tezpur to the learned Court of Principal Judge, Family Court, Kamrup (Metropolitan), Guwahati. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned District Judge, Sonitpur, Tezpur for transfer of the said proceedings.
The parties, who are represented by their respective learned counsel are directed to appear in person or through duly instructed pleader before the court of the learned Principal Judge, Family Court, Kamrup (Metropolitan), Guwahati on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned Principal Judge, Family Court, Kamrup (Metropolitan), Guwahati would be at liberty to transfer the case before any other competent Court for trial.
xii. Tr.P .(C) No. 56/ 2014 - Sm t. Geetashree Gosw am i Vs. Sri Jadavananda Gosw am i - The petitioner/ wife is the defendant in T.S. (D) Case No. 104/2013. The petitioner has prayed for transfer of the said case from the learned Court of District Judge, Nagaon to Page 28 of 32 the learned Court of District Judge, Jorhat. The parties have no issues. It is submitted that the petitioner has no independent source of income and has no one to escort her to Nagaon. It is also submitted that the respondent is an influential person in Nagaon. Considering the said statements this Court is inclined to transfer the proceedings of T.S. (M) No. 104/2014 from the learned Court of District Judge, Nagaon to the learned Court of District Judge, Jorhat. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Court of District Judge, Nagaon for transfer of the said proceedings.
The parties, who are represented by their respective learned counsel are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Jorhat on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Jorhat would be at liberty to transfer the case before any other competent Court for trial.
xiii. Tr.P .(C) No. 71/ 2016 - Sm t. P ronoti Borkataki Vs. Sri M anash Jyoti Borpujari - The petitioner/ wife is the defendant in F.C. (Civil) Case No. 748/2016 under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 for dissolution of marriage. The petitioner has prayed for transfer of the said case from the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati to the learned Court of District Judge, Jorhat. The parties have no issues. It is submitted that the petitioner has no independent source of income and has no one to escort her to Guwahati to attend the Court proceedings. It is also submitted that the petitioner is now pursuing her further studies in Library Science. Considering the said statements this Court is inclined to transfer the proceedings of F.C. (Civil) Case No. 748/2016 from the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati to the learned Court of District Page 29 of 32 Judge, Jorhat. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Principal Judge, Family Court, Kamrup (M), Guwahati for transfer of the said proceedings.
The parties, who are represented by their respective learned counsels are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Jorhat, on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Jorhat would be at liberty to transfer the case before any other competent Court for trial.
xiv. Tr.P .(C) No.81/ 2016 - Sm t. Dim pal Upadhyay Vs. Sri M eghraj Upadhyay - The petitioner/ wife is the defendant in F.C. (Civil) Case No. 666/2016 under Section 13(1)(i-b) of the Hindu Marriage Act, 1955 for dissolution of marriage. The petitioner has prayed for transfer of the said case from the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati to the learned Court of District Judge, Margharita. The parties have a minor girl child as their only issue, which is now living with the petitioner. It is submitted that the petitioner has no independent source of income and her old father is a retired school teacher and her mother is mentally sick and, as such, she has no one to escort her to Guwahati to attend the Court proceedings. The petitioner has filed a case for seeking maintenance, which is numbered as Misc. Maintenance Case No. 26/2016, which is pending for trial before the Court of Sub- Divisional Judicial Magistrate, Margherita. Considering the statements made by the learned counsels for both sides, this Court is inclined to transfer the proceedings of F.C. (Civil) Case No. 666/2016 from the learned Court of Principal Judge, Family Court, Kamrup (M), Guwahati to the learned Court of District Judge, Dibrugarh. In this regard, it would be the duty of the petitioner to Page 30 of 32 produce a certified copy of this order before the learned Principal Judge, Family Court, Kamrup (M), Guwahati for transfer of the said proceedings.
The parties, who are represented by their respective learned counsels are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Dibrugarh, on 03.11.2017 and by producing a certified copy of this order, shall seek further instruction from the said learned court. The learned District Judge, Dibrugarh would be at liberty to transfer the case before any other competent Court for trial.
xv. Tr.P .(C) No. 30/ 2017 - Sm t. P riyanka K illa M odi Vs. Sri Saurav K illa - The petitioner/ wife is the defendant in T.S. (M) No. 29/2017 under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 for dissolution of marriage. The petitioner has prayed for transfer of the said case from the learned Court of Additional District Judge, Sonitpur, Tezpur to the learned Court of District Judge, Tinsukia. The parties have a minor girl child as their only issue, which is now living with the petitioner. It is submitted that the petitioner has no independent source of income and as her parents are aged, she has no one to escort her to Guwahati to attend the Court proceedings. Considering the said statements this Court is inclined to transfer the proceedings of T.S. (M) No. 29/2017 from the learned Court of Additional District Judge, Sonitpur, Tezpur to the learned Court of District Judge, Tinsukia. In this regard, it would be the duty of the petitioner to produce a certified copy of this order before the learned Additional District Judge, Sonitpur, Tezpur for transfer of the said proceedings.
The parties, who are represented by their respective learned counsels are directed to appear in person or through duly instructed pleader before the court of the learned District Judge, Tinsukia, on 03.11.2017 and by producing a certified copy of this order, shall Page 31 of 32 seek further instruction from the said learned court. The learned District Judge, Tinsukia would be at liberty to transfer the case before any other competent Court for trial.
22. In summing up the entire deliberation, this Court holds that this Court has the jurisdiction to transfer the matrimonial cases filed under Section 24 of the Code of Civil Procedure. Transfer is refused in the case Sl. No.(2) Tr.P.(C) No.11/2017 (Maya Das (Thapa) Vs. Dipankar Das) and Sl. No.(5) Tr.P.(C) No.25/2016 (Sri Sumit Ranjan Nath Vs. Smt. Suchita Nath) and in all other cases transfer is allowed.
23. The stay order(s) passed earlier stands vacated.
24. The Parties to bear their own costs.
JUDGE MKS Page 32 of 32