Gujarat High Court
Shraddha W/O Kumar Kamalbabu Bhatt And ... vs Kumar Kamalbabu Bhatt....Opponent(S) on 30 September, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/MCA/1799/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION NO. 1799 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers
may be allowed to see the judgment ?
2 To be referred to the Reporter or
not ?
3 Whether their Lordships wish to see
the fair copy of the judgment ?
4 Whether this case involves a
substantial question of law as to
the interpretation of the
Constitution of India or any order
made thereunder ?
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SHRADDHA W/O KUMAR KAMALBABU BHATT AND D/O DIPAKBHAI
MUGATBHIA JOSHI....Applicant(s)
Versus
KUMAR KAMALBABU BHATT....Opponent(s)
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Appearance:
MR SANDEEP N BHATT, ADVOCATE for the Applicant(s) No. 1
MR KASHYAP R JOSHI, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 30/09/2015
CAV JUDGMENT
1. Rule. Mr. Kashyap R. Joshi, learned advocate waives service of notice of Rule for and on behalf of Respondent.
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2. Heard Mr. Sandeep N. Bhatt, learned advocate for the Applicant and Mr. Kashyap R. Joshi, learned advocate for the Respondent at length and perused the record.
3. The Respondent has filed one HMP / F.Suit No.770 of 2015 before the Family Court, Ahmedabad seeking divorce under Hindu Marriage Act on the ground of cruelty, mental torture.
4. The Petitioner has shown his address in such petition as of Ahmedabad, whereas, address of the Respondent is disclosed as per cause title in this petition which is of Rajkot. The Petitioner - wife has preferred this application seeking transfer of above referred HMP / F.Suit from the Family Court, Ahmedabad to Family Court, Rajkot on several grounds viz;
[A] She is residing at Rajkot
with her parents.
[B] Her parents are Senior
Citizens and there is nobody in
the Family to support her for
contesting the HMP / F.Suit at
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C/MCA/1799/2015 CAV JUDGMENT
Ahmedabad which requires regular travelling and attending the Court.
[C] The Family Court, generally, does not allow the advocates to appear in a Family dispute because of provision of law to that effect.
[D] Though, she is also serving as a lecturer, it is difficult for her to get frequent leave and to travel from Rajkot to Ahmedabad and to appear before the Family Court at Ahmedabad.
5. In addition to such factual contentions, she is also relying upon few judgments which are disclosed in the ground No.6(E), which will be referred hereinafter.
6. In addition to such basic information, it is also contended by the wife that two other proceedings are already pending at Rajkot in the form of complaint before Mahila Police Station at Rajkot being C.R. No.I57 of 2014 dated 11.10.2014 under Sections 498(A), 323 and 506(2), so also another complaint dated Page 3 of 12 HC-NIC Page 3 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT 28.3.2015 under Sections 406 and 114 of IPC.
7. It is also contended that the Opponent -
husband and his parents had illtreated the Applicant - wife and had made all the efforts to harass her with mental torture at matrimonial house at Ahmedabad and in the month of March, 2013. Applicant was suffering from typhoid, neither Opponent nor his parents had bothered to take care of the Applicant and, therefore, father of the Applicant has to rush from Rajkot for proper treatment. But even, thereafter, Opponent - husband is not taking care of the Petitioner
- wife. It is further contented that father of the Applicant is now going to retire and she has younger sister and brother, whereas, Opponent is the only son of his parents and he is having Government Job in Government College, whereas, his father is also serving as a Deputy Director in a Government Department. Thereby, contending that husband is in a better financial position whereas, Applicant is in financial difficulty, and, therefore, it is difficult for her to travel 220 kilometers on one side i.e. 440 kilometers on each date of hearing.
8. As against that, Respondent being a male Page 4 of 12 HC-NIC Page 4 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT person and having sound financial condition, he can certainly afford to attend the Court at Rajkot.
9. The Petitioner has, in support of her submission, as aforesaid, annexed several documents at Annextures `A' to `D' which is of almost 70 pages.
10. The Respondent - husband has resisted this petition and objected to transfer the HMP / F.Suit from the Family Court, Ahmedabad to Family Court, Rajkot by filing affidavitin reply with few documents so as to prove that Petitioner is serving as a lecturer in a private college and, thereby, she is having income and that all the properties have been handed over to her. It is also contended that infact after filing of such petition, he has been transferred at Dahod and, therefore, now, it would be more difficult for him to travel from Dahod to Rajkot. Therefore, in addition to contention taken in reply, it is submitted that it would be appropriate for the Petitioner to attend the Family Court at Ahmedabad from Dahod. Whereas, so far as contents of affidavitinreply are concerned, it is more or less in the form of denial of the statements in the petition further Page 5 of 12 HC-NIC Page 5 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT contending that it being a civil case, her physical presence will not be required on each date of hearing. There are certain other facts disclosed by the Respondent in his reply but, then, Petitioner denies such averments and, therefore, this being a transfer petition, it would be appropriate to restrain from discussing on any such factual aspects which would otherwise prejudice the final trial between the parties.
11. Therefore, at present, if we consider the issue regarding transfer of the proceeding from one District to another District, the basic principle would be regarding consideration of difficulty that may be faced by the litigants, more particularly, wife being a lady, in attending the Court at different place than her residence and that too when it is beyond 200 kilometers on one side which will result into travelling more than 400 kilometers on each date of hearing, so also the expenditure and other difficulties.
12. It is also settled legal position that practically in all statutes regarding safeguarding the rights of the women, now, jurisdiction is fixed in addition to regular Page 6 of 12 HC-NIC Page 6 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT jurisdiction as per other enactment, at the place of residence of woman so also, she has to avoid long travelling to attend such legal proceeding at a different place than her residence.
13. The Petitioner is, therefore, relying upon following cases;
[A] Sonal Shreyansh Vasa the Daughter of Gaurishanker L V. Shreyansh Hitenbhai Vasa, reported in 2013(0) GLHELHC 230202 [B] Sonalben Pankajbhai Parekh v. Pankajbhai Hariharbhai Parekh, reported in 2012(0) GLHELHC 227106 [C] Renu Purshottam Mandovara W/o Dinesh Ramjas Shah v. Chetan Aasharam Enani, reported in 2013(0) GLHELHC 228973 [D] Riya @ Lata W/O Mahesh Israni v. Mahesh Sugnomal Israni reported in 2003 Law Suit(Guj) 393 If we peruse all such decisions, it becomes clear that coordinate benches of this Court have considered, similar issue that when wife Page 7 of 12 HC-NIC Page 7 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT has to travel about 400 kilometers for attending the Court proceeding, which would certainly result into great hardship and inconvenience to the Applicant - wife and that even educational qualification and salary of the Applicant - wife would hardly have any nexus to the inconvenience and hardship to be faced by her in such travelling on every date. Therefore, convenience of the wife is to be looked at and thus litigation is transferred at the place where the wife is residing. In one case, the HMP / F.Suit is transferred from Bhuj Court to Vadodara Court. In another case, proceeding was transferred from Family Court, Ahmedabad to Family Court, Rajkot and in third case, from Family Court, Ahmedabad to Family Court, Vadodara which is at the distance of only 100 kilometers.
14. As against that, Respondent husband is relying upon the following decisions: [A] Y.A. Ajit v. Sofana Ajit reported in 2007 SC 3151 wherein, Hon'ble Supreme Court has held that while deciding such transfer application, concept of place where cause of action arises has to be kept in mind. Therefore, Hon'ble Supreme Court has remanded Page 8 of 12 HC-NIC Page 8 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT the matter back to the High Court. However, in the present case, even if we consider such principle of cause of action, cases of divorce reflect a unique cause of action, which is not related to the place and as aforesaid when in several statutes, jurisdiction between the husband and wife is considered as the place where wife is residing and technically, if we consider the place of marriage, which is generally at the place of the maternal house of the wife, then, in that view of the matter, such judgment would not help the Respondent so as to dismiss the application.
[B] Jitendra Singh v. Bhanu Kumari reported in AIR 2008 SC 2987 wherein, Hon'ble Supreme Court has held that power conferred on Court to transfer the case is discretionary and that when transfer is sought by a party, notice has to be given to other party before ordering transfer and that pendency of Criminal cases against the party applying for transfer is not a ground for a transfer. However, the sum and substance of the decision is only to the effect that Section 24 does not prescribe any ground for ordering the transfer of cases and its a judicial discretion of the Court to transfer Page 9 of 12 HC-NIC Page 9 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT a particular case. Therefore also, this judgment would not help the Petitioner for dismissing this application.
[C] Pooja Chaudhary v. Vinay Jaiswal being Transfer Petition (Civil) No.683 of 2014 decided on 8.1.2015, wherein, the Hon'ble Supreme Court has refused to transfer the petition from Ghaziabad to Betul, Madhya Pradesh. However, Paragraph 3 of the judgment specifically discloses that it is in view of the peculiar facts and circumstances of the case. With due respect, when such facts and circumstances are not available to be appreciated only because of not transferring a case by the Hon'ble Supreme Court, it would not make a rule of thumb that no petition for transfer can be allowed irrespective of facts and circumstances emerging on record and between the parties before the Court.
[D] Sumita Singh v. Kumar Sanjay reported in AIR 2002 SC 396 is relevant, wherein, Hon'ble Supreme Court has held that convenience of wife must be looked at while considering transfer of matrimonial proceeding initiated by husband against the wife and, thereby, order to transfer the suit Page 10 of 12 HC-NIC Page 10 of 12 Created On Fri Oct 02 01:53:26 IST 2015 C/MCA/1799/2015 CAV JUDGMENT filed by the husband at the place where wife was residing. It is also to be noted here that such judgment has never been overruled and, therefore, only because few judgments are in favour of the husband, it cannot be said that rule of thumb is to deny the transfer.
15. In view of above facts and circumstances, if we appreciate the factual details on record, I am of the clear opinion that this is a fit case to transfer the divorce petition from the Family Court, Ahmedabad to Family Court, Rajkot since it would be difficult for the Petitioner - wife to travel beyond 440 kilometers on each date of hearing and to defend herself personally before the Family Court, Ahmedabad where she has disturbing memories and where her inlaws are staying. It is also difficult for a wife to travel all alone on each occasion.
16. So far as financial condition is concerned, father of the Petitioner has now retired and she is serving in a private college from where she may not get leave on every date, whereas, husband is serving on a better position and he can manage to travel from one place to another place.
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17. In view of above facts and circumstances, when such jurisdiction is discretionary, even I do not see any reason to deny the discretionary order in favour of the Petitioner only because husband is opposing such transfer.
18. Under the above circumstances, this application is allowed, as prayed for. Thereby, HMP / F.Suit No.770 of 2015 preferred by present Opponent for divorce against the Petitioner before the Family Court, Ahmedabad is hereby ordered to be transferred to the Family Court, Rajkot.
19. Rule is made absolute.
(S.G.SHAH, J.) * Vatsal Page 12 of 12 HC-NIC Page 12 of 12 Created On Fri Oct 02 01:53:26 IST 2015