Gujarat High Court
Sonal Shreyansh Vasa The Daughter Of ... vs Shreyansh on 4 February, 2000
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
SONAL SHREYANSH VASA THE DAUGHTER OF GAURISHANKAR L....Applicant(s)V/SSHREYANSH HITENBHAI VASA....Opponent(s) C/MCA/691/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION (FOR TRANSFER) NO. 691 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ===================================================== SONAL SHREYANSH VASA THE DAUGHTER OF GAURISHANKAR L .... Applicant(s) Versus SHREYANSH HITENBHAI VASA ....Opponent(s) ===================================================== Appearance:
MR NALIN K THAKKER, ADVOCATE for the Applicant(s) No. 1 MR SS TRIVEDI, ADVOCATE for the Opponent(s) No. 1 ===================================================== CORAM:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 31/07/2013 CAV JUDGEMNT
1. Rule.
Mr.S.S.Trivedi, learned advocate, waives service of notice of Rule for the opponent.
2. This application has been preferred by the applicant-wife, inter alia, with a prayer to transfer HMP No.114 of 2010, pending in the Court of learned Principal Senior Civil Judge, Bhuj-Kachchh, to the Family Court, Vadodara.
3. Briefly stated, the facts giving rise to the present application are that, the applicant married the respondent, Shreyansh Hitenbhai Vasa, on 1-6-2010, at Vadodara, as per Hindu customs and rites. The applicant has a Diploma Degree in Electrical Engineering, whereas the respondent is stated to be B.Tech.(IC). The applicant is serving in Voltamp Transformer Ltd., Vadodara, since the year 2007. The respondent is serving as a Senior Engineer in Adani Infra India Ltd., Mundra-Maneja Crossing, located about 15 Kms. away from Mundra-Kachchh. According to the applicant, it was decided before the marriage that the respondent would stay at Vadodara. However, he is now insisting that the applicant should leave service and reside with him, at Mundra. The applicant was earlier residing with her mother at Vadodara, but she is now residing in a rented house at that place. It is the case of the applicant that the respondent used to visit Vadodara and stay with the applicant in the rented house. The applicant also goes to Mundra occasionally, on weekends. Differences arose between the applicant and the respondent. According to the applicant the respondent insisted on operating her Internet Bank Account. One of the issues that arose was the Password of the applicant in the said Internet Bank Account, which the respondent wanted to take from her. According to the applicant, when she did not agree to this, the respondent became angry and misbehaved with her. The respondent allegedly demanded an amount of Rs.70,000/-. The mother of the respondent also allegedly quarrelled with the applicant when she went to Mundra, on 5-12-2010. It is further stated in the application that the applicant was beaten by the respondent and compelled to hand over all her gold ornaments. The respondent and his mother threatened the applicant to prevent her from entering the house of the respondent at Mundra. The mother of the respondent is also alleged to have told the applicant to leave service and reside at Mundra. She is further stated to have asked the applicant why she is not giving money to the respondent . The applicant then telephoned her bother at Vadodara, and returned to Vadodara, with him.
3.1 It is further stated by the applicant that in order to shirk his responsibilities towards her, the respondent has filed HMP No.114 of 2010, for restitution of conjugal rights. The said petition is pending before the Court of learned Principal Senior Civil Judge, Bhuj-Kachchh, wherein a number of allegations have been made against the applicant. The applicant has filed a reply thereto. It is in the above background that the instant application has been filed.
4. This Court has heard Mr. Nalin K. Thakker, learned advocate for the applicant and Mr. S.S. Trivedi, learned advocate for the respondent.
5. It is submitted by Mr. Nalin K. Thakker, learned advocate for the applicant, that the applicant is required to attend the Court proceedings at Bhuj, regularly. She has already gone there sixteen times from January, 2011, to March, 2013. The distance between Vadodara and Bhuj is 400 Kms. As the applicant is a lady, she cannot go alone and has to be accompanied by her father, every time. It is further submitted that the marriage was solemnized at Vadodara and the father and other members of the applicant are also residing at Vadodara. Considering the hardships and inconvenience faced by the applicant, including the expense involved, the proceedings may be transferred from Bhuj to Vadodra, in the interest of justice.
6. In support of his submissions, learned counsel for the applicant has placed reliance upon the following judgments.
(1) Sumita Singh Vs. Kumar Sanjay reported in AIR 2002 SC 396 (2) Riya @ Lata W/o. Mahesh Israni Vs. Mahesh S/o. Sugnomal Israni reported in 2004(1) GCD 347: 2003(4) GHJ 574 (3) V. Sailaja v. V. Koteswara Rao reported in AIR 2003 AP 178 (4) Smt. Jayadevi v. Basavaraj reported in AIR 1990 Karnataka 273 (5) Minesh Rajnikant Dalal V. Avani Minesh Dalal reported in 2000(2) GLH 634 (6) Vasantiben Tulsibhai Gajera v. Kantibhai Premjibhai Patel reported in 2000(0) GLHEL-HC 213622 7 Mr. S.S. Trivedi, learned advocate for the respondent, has submitted that though the applicant would have to travel 400 Kms. from Vadodara to Bhuj with her father, however, she is an educated lady and is working as a Senior Engineer in a Company and she can easily do so. The applicant is drawing a salary of about Rs.30,000/- per month, therefore, she is not facing any inconvenience in coming to Bhuj. It is further submitted that if the matter is transferred to Vadodara, the same situation would arise for the respondent and the steps taken by the respondent to settle the issues between the applicant and the respondent would be delayed and frustrated.
8. In the context of the above facts and circumstances, it may be fruitful to refer to the judgments cited by learned counsel for the applicant.
8.1 In Sumita Singh Vs. Kumar Sanjay (Supra) the Supreme Court has held as below:
This is a transfer petition by the wife. She seeks the transfer of matrimonial proceedings filed by the husband against her in Ara, Bhojpur to Delhi. It is her case that she is now living and working in Delhi and that she would be unable to travel up and down from Delhi to Ara, a distance of about 1100 Kilometers from Delhi, to defend the matrimonial proceedings. She also states that she has no one with whom she can stay in Ara because her parents are residents of Gurgaon.
Learned counsel for the husband states that the wife is an educated woman who is doing very well and can, therefore, travel to Ara while the husband is unemployed.
It is the husband s suit against the wife. It is the wife s convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute.
Accordingly, Matrimonial Case No.30 of 2000 pending before the VIth Additional District and Sessions Judge, Ara, Bhojpur, Bihar shall stand transferred to the District Judge, Delhi, who shall hear it himself or assign it for hearing to an appropriate forum.
5. No order as to costs.
(emphasis supplied 8.2 In Riya @ Lata W/o.
Mahesh Israni Vs. Mahesh S/o. Sugnomal Israni (Supra) this Court has held as below:
4.
I have considered the submissions made by learned advocate for the applicant wife and also submissions made by Mr.Acharya, learned advocate for the respondent husband in this behalf. I have also considered Section 24 of the CPC which provides for transfer of the case from one court to another court and also judgment of the Madras High Court in the case of K.R.Srinathi (supra) and also judgment of Apex Court in the case of Sumita Singh (supra), Anuradha Dalal (supra) and Usha George (supra) and also the Calcutta High Court judgment in the case of Sm.Pritikona Banerjee (supra). I have also considered the fact that in this case there is already proceeding pending before the Gandhidham Court being H.R.P.Suit No.4/01 for decree for restitution of conjugal rights. I have also considered the fact that wife is a household lady and she is not earning whereas the husband is serving as a officer in the Gujarat Electricity Board, Ukai at Surat.
4.1 In my view the following principle emerges for deciding the authority. The principle which has been laid down has been set out in Code of Civil Procedure by C.K.Thakker, Vol.1 2000 Edition page 569 which reads as under:
"As discussed above, the power of transfer must be exercised with extreme caution and circumspection and in the interest of justice. The court while deciding the question must bear in mind two conflicting interests; (i) as a dominus litis the right of the plaintiff to choose his own forum; and (ii) the power and duty of the court to assure fair trial and dispensation of justice. The paramount consideration would be the requirement of justice. And if the ends of justice demands transfer of a case, the court should not hesitate to act."
In the said case, the applicant wife had sought transfer of the case from Ahmedabad to Gandhidham, which prayer was granted by the Court, considering the physical, mental and financial inconvenience faced by the wife.
8.3 In V. Sailaja v. V. Koteswara Rao (Supra) it is held that it is the convenience of the wife that has to be taken into consideration by the Court.
8.4 In Smt. Jayadevi v. Basavaraj (Supra) the facts were that the wife sought transfer of the Suit to her parents place apprehending danger to her life in the event of entering husband s town. The prayer of the wife was granted and the Suit was transferred taking into consideration the state of mind of the wife.
8.5 In Minesh Rajnikant Dalal V. Avani Minesh Dalal (Supra) the facts were that the wife was residing with her parents at Ahmedabad, where she had filed a petition under the Hindu Marriage Act. The respondent filed another petition at Vadodara. It was the case of the wife that she had to look-after her daughter and considering the amount of maintenance which she was getting from her husband, frequent travel to and fro Ahmedabad was proving inconvenient and hard to her. It is in this background that this Court held as below:
21. ......The powers which vest in this court under Section 24 of the Civil Procedure Code, are comprehensive and discretionary. The fact that this court can, on its own motion, even without notice to the other side, withdraw any suit or appeal or other proceedings pending in any court subordinate to it and transfer the same speaks of wide powers which are vested in it under Section 24 of the Code. Legislature has not limited the power and discretion of this court under Section 24 of the Code, meaning thereby, the powers are not circumscribed by any considerations. Under Section 24 of the Code, consideration is that if the court is satisfied that circumstances so warrant such transfer the matters can be ordered to be transferred. Looking to the facts of this case and the meagre amount of cost of expenses awarded to the wife, at least to the extent of overcoming avoidable expenditure some relief would be available to the wife on transfer of this case to Ahmedabad.
8.6 In Vasantiben Tulsibhai Gajera v. Kantibhai Premjibhai Patel (Supra) (Civil Misc. Petition No.1736 of 1999) vide judgment dated 04.02.2000, this Court allowed the prayer of the wife for transfer of the case from Jamnagar to Rajkot, holding as below:
3.
.....Be that as it may, otherwise also, the petitioner being a weaker sex, she may have manifold difficulties, inconvenience in case she is to go to Jamnagar to attend the proceedings of Hindu Marriage Petition filed by respondent for dissolution of marriage by decree of divorce. Then being a lady, it will not only be inconvenient but she may have a feeling of unsafeness to come to the place where the husband is residing. Section 24 of the Civil Procedure Code gives very wide powers to the court for transfer of cases from one District to another. In fact, even no reasons are required to be recorded. It is only the satisfaction of the court on which the orders can be passed. Section 24 of the Code nowhere contemplates or lays down the grounds on which only the court can exercise powers for transfer of cases from one District to another. The court is to see that one litigant may not be unnecessarily sufferer or inconvenience may not be caused to her merely because the other spouse has chosen to file a petitioner at a place where he is residing.
It is not in dispute that this petition, i.e. petition for dissolution of marriage by decree of divorce was also maintainable at Rajkot. In these facts, I find sufficient merits in the contention of the learned counsel for the petitioner that the respondent has deliberately filed this proceeding in the Court at Jamnagar.
(emphasis supplied)
9. In the background of the above legal principles, it would be fruitful to refer to the provisions of Section 24 of the Code of Civil Procedure, 1908 which is reproduced herein below:
24. General Power of transfer and withdrawal.-
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn [(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) proceeding includes a proceeding for the execution of a decree or order.] The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it].
10. This provision of law vests discretionary power in the High Court to transfer a Suit, appeal or other proceedings, pending in any Court subordinate to it for trial.
11. In Indian Overseas Bank v. Chemical Construction Co. reported in (1979)4 SCC 358, the Supreme Court has enumerated principles regarding the general power of transfer and withdrawal under Section 24 of the Code as below:
16.
The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The Court should not lightly change that forum and compel him to go to another Court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another Court, albeit a material consideration, may not always be a sure criterion justifying transfer.
12. In Kulwinder Kaur v. Kandi Friends Education Trust reported in (2008) 3 SCC 659 the Supreme Court has held as below:
23.
Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.
13. Further, in Jitendra Singh v. Bhanu Kumari and others reported in (2009)1 SCC 130 the Supreme Court reiterated the nature and scope of discretion vested under Section 24 of the Code, in the following terms:
9.
The purpose of Section 24 CPC is merely to confer on the Court a discretionary power. A court acting under Section 24 CPC may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the Court must act judicially in ordering a transfer on the application of a party. In the instant case the reason which has weighed with the High Court for directing transfer does not really make out a case for transfer.
14. From the judicial pronouncements referred to hereinabove it emerges that the power under Section 24 of the Code is a discretionary one. Though no ground has been prescribed in Section 24 for ordering the transfer of a case, however, the facts and circumstances of the case, balance of convenience or inconvenience to the plaintiff, defendant or witnesses, the nature of the evidence, points involved in the Suit and issues raised by the parties as well as the fairness of the judicial proceedings would have to be kept in mind before exercise of such power. The power under Section 24 of the Code can be exercised at any stage. Although the power of transfer is a discretionary one it cannot be confined within a straightjacket formula. Moreover, one formula cannot be made applicable to all situations, therefore, the relative inconvenience of the parties would have to be balanced and it would have to be seen in whose favour the balance tilts.
15. In the present case the fairness of the judicial proceedings is not in question. The respondent-husband has filed an application for restitution of conjugal rights in the Court of learned Principal Senior Civil Judge, Bhuj-Kachchh. The marriage of the applicant and the respondent was solemnised at Vadodara. After differences arose between them, the applicant is residing at Vadodara whereas the respondent lives in Mundra. Bhuj is at a distance of about 400 Kms. from Vadodara. The applicant would have to travel the distance of 400 Kms., to attend every hearing of the Court at Bhuj. Being a lady, she would have to be accompanied by her father, or any other male member of the family. Not only would this involve considerable inconvenience and hardships, it would also prove to be expensive in the long run. It is, therefore, reasonable to conclude that the applicant-wife would face greater inconvenience in travelling from Vadodara to Kachchh on every date of hearing, with her father. It has been stated that she has travelled from Vadodara to Bhuj 16 times already.
16. It has been contended on behalf of the respondent that the applicant is an educated lady, being a Senior Engineer, earning a salary of Rs.30,000/- a month. In the view of this Court, the educational qualifications and salary of the applicant would hardly have any nexus to the inconvenience and hardship faced by her in travelling from Vadodara to Bhuj, accompanied by her father, every time. She would have to incur a considerable amount of expenditure, as she would have to travel with her father or any other companion/escort, considering the distance between Vadodara to Bhuj. The inconvenience that may be faced by the respondent-husband in coming from Bhuj to Vadodara would be much lesser in comparison, as he would not have to bring along an escort.
17. It is not as though the husband is unemployed. He is also an educated person and is well employed in Adani Infra India Ltd. at Mundra. It has been stated in the affidavit-in-reply filed by the respondent that the transfer of the case from Bhuj to Vadodara would delay and frustrate the steps taken by the respondent to settle the issues between the applicant and himself. This Court cannot see how the transfer of a case would frustrate efforts of settlement between the parties. Such efforts can well be made if the parties are ready to reconcile, irrespective of the place. It has also been mentioned in the application that the applicant has already travelled 16 times from Vadodara to Bhuj between January 2011 and March 2013. There is no certainty when the case filed by the respondent at Bhuj would be decided.
18. This Court has considered the rival submissions and the aspect that the wife has to travel 400 Kms. from Vadodara to Bhuj, accompanied by her father, and the expenditure involved in the process. It has further considered the fact that the marriage between the parties was solemnised at Vadodara, therefore, the Court at Vadodara would have jurisdiction. In the above circumstances, the prayer made by the applicant appears to be genuine.
19. Moreover, in view of the dicta of the Supreme Court in Sumita Singh Vs. Kumar Sanjay (Supra), to the effect that the convenience of the wife must also be looked at, the prayer made by the applicant for transfer of the petition to Vadodara deserves to be granted.
20. Accordingly, the application is allowed. HMP No.114 of 2010 pending in the Court of learned Principal Senior Civil Judge, Bhuj-Kachchh shall stand transferred to the Family Court, Vadodara.
21. Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT.
ABHILASHA KUMARI, J.) ARG Page 21 of 21