Calcutta High Court (Appellete Side)
Neha Dubey @ Neha Mishra (Dubey) vs Gautam Kumar Mishra on 12 March, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 12.03.2019[06]
Ct.25 suman C.O. 2763 of 2018 Neha Dubey @ Neha Mishra (Dubey) Vs. Gautam Kumar Mishra Mr. Avik Ghatak Mr. Salman Hasan ...for the petitioner Mr. Debangan Bhattacharjee Mr. Sandipan Dutta Mr. Gourab Das Ms. Swarnali Saha ...for opposite party This is an application under Section 24 of the Code of Civil Procedure (hereafter the C.P.C.) filed by the wife / petitioner praying for transfer of Matrimonial Suit No.3296 of 2017 from the 1st Court of the learned Additional District Judge, Serampore, Hooghly to the Court of learned District Judge, South 24 Parganas at Alipore or any other Court of competent jurisdiction at Alipore.
In her application, it is stated by the petitioner that she has been residing at her paternal home at Chetla within the jurisdiction of Alipore District Judge's Court. Her husband, the 2 opposite party herein, has filed the above numbered matrimonial suit at Serampore. The petitioner contends that there is a possible threat perception if she attends Serampore Court. She apprehends humiliation and possible physical torture upon her by the opposite party. Secondly, the petitioner states that in order to attend Serampore Court from Chetla, she will have to travel at least for two hours by train from Howrah Station. Therefore, on the dates on which she would require to appear before the learned Additional District Judge, 1st Court at Serampore, she would have to travel for more than four hours to attend the hearing and back. Thirdly, it is pleaded by the petitioner that she has been residing presently with her father who is aged about 60 years. It is not possible for her old father to escort her to Serampore Court. Therefore, the petitioner has prayed for transfer of the matrimonial suit to Alipore. Mr. Avik Ghatak, learned advocate for the petitioner after making his submission to the tune of what has been pleaded in the application under Section 24 of the C.P.C, draws my attention to the affidavit-in-opposition by the opposite party against the aforesaid application. Referring to Annexure P-2 of the affidavit-in-opposition, it is submitted by the learned advocate for the petitioner that the opposite party has tried to 3 make out a case that the petitioner is a working lady and when she does not find any difficulty to travel from Chetla to Salt Lake to attend her duties, she may not have any difficulty to attend Serampore Court as well. However, the petitioner has filed a letter addressed to her by her employer, Annexure R-1 of the affidavit-in-reply, which shows that the petitioner has already tendered resignation from her service. It is also pointed out by Mr. Ghatak, learned advocate for the petitioner that the opposite party out of retaliation lodged a complaint against the petitioner at Serampore Police Station making allegation under Section 497 of the Indian Penal Code on the basis of which Serampore P. S. Case No.379 of 2017 was registered. According to the learned advocate for the petitioner, institution of the said criminal case making specific allegation touching the character of the petitioner goes to suggest that the relationship between husband and wife is absolutely inimical. The apprehension of the petitioner of being harassed and humiliated if she attends Serampore Court cannot be brushed aside. On the question of law, Mr. Ghatak refers to the following decisions of the Apex Court:-
(i) Rajani Kishor Pardeshi versus Kishor Babulal Pardeshi; (2005) 12 SCC 237.4
(ii) Sumita Singh versus Kumar Sanjay and Another; (2001) 10 SCC 41.
(iii) Soma Choudhury versus Gourab Choudhaury;
(2004) 13 SCC 462.
(iv) Anjali Ashok Sadhwani versus Ashok Kishinchand Sadhwani; (2009) 16 SCC 188.
In Rajani Kishor Pardeshi (supra), Sumita Singh (supra) and Soma Choudhury (supra) the Supreme Court was pleased to hold that while dealing with an application under Section 24 of the C.P.C. arising out of matrimonial proceeding, convenience of the wife should be given primary consideration.
In Anjali Ashok Sadhwani (supra) the Hon'ble Supreme Court was pleased to allow the petitioner's prayer to transfer the matrimonial suit from Mumbai to Indore on the ground that the petitioner /wife had no one in her family to escort her during her journey.
Mr. Debangan Bhattacharjee, learned advocate for the opposite party, on the other hand submits that the petitioner was a working lady till May, 2018. There is no averment that the petitioner feels practical difficulty in moving out of her paternal home. She used to travel regularly from Chetla 5 to Salt Lake for her official duties. Therefore, the petitioner should not suffer any inconvenience in attending Serampore Court to represent herself in the matrimonial suit filed by the opposite party.
It is further submitted by Mr. Bhattacharjee that the story of threat perception as made out by the petitioner is nothing but a myth because it is the petitioner and one Anas Khan against whom the opposite party had made the specific complaint, continuously threatened the opposite party for which he was compelled to lodge a General Diary in Serampore P. S. The opposite party also apprehends that if the instant application is allowed and the suit is transferred to Alipore he may be harassed by the petitioner and her men.
It is also submitted by Mr. Bhattacharjee that the petitioner has already entered appearance before the learned Additional District, 1st Court at Serampore, filed her written statement and the next date is fixed for framing of issues.
Having heard submissions made by the learned advocates for the petitioner and the opposite party and on perusal of the entire record as well as the reports of the 6 Apex Court on this point, I like to record at the outset that convenience of the wife is indeed a prime consideration in a proceeding under Section 24 of the C.P.C. I am also not unmindful to note that in all reported decisions cited by the learned counsel for the petitioner the respective matrimonial suits were sought to be transferred from one State to another covering a distance of more than one thousand miles.
Here, in the instant case, the distance between Chetla and Serampore is about two hours journey by train. Therefore, I am of the view that petitioner can conveniently travel Serampore Court from Chetla. However, it is a matter of record that both the parties are suffering from threat perception and there may be genuine apprehension that either of the parties may be harassed and humiliated in the hand of his /her adversary if any of them is directed to attend either Serampore or Alipore Court.
In view of such circumstances, I am of the opinion that if the Matrimonial Suit No.3296 of 2017, pending before the Court of the learned Additional District Judge, 1st Court at Serampore, Hooghly is transferred to the Court of learned District Judge, Howrah, there will be no inconvenience of 7 either of the parties. Both the petitioner and the opposite party will have to travel almost equal distance from their respective places of residence. Fear of humiliation or harassment may not be there in the mind of the parties if they are asked to conduct their suit at Howrah. There will hardly be any financial hardship of either of the parties if the suit is transferred to Howrah.
For the reasons stated above, the Matrimonial Suit No.3296 of 2017 pending before the Court of the learned Additional District Judge, 1st Court at Serampore, Hooghly be transferred to the Court of learned District Judge, Howrah for trial and disposal.
The application is thus disposed of on contest, without any cost.
Office is directed to send copy of this order to both the learned Additional District Judge, 1st Court at Serampore, Hooghly and the learned District Judge, Howrah for information and compliance of this order forthwith.
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.) 8