Gauhati High Court
Pallavi Saikia (Bharali) vs Mriganka Bharali on 24 November, 2005
Equivalent citations: (2006)2GLR135
Author: H.N. Sarma
Bench: H.N. Sarma
JUDGMENT H.N. Sarma, J.
1. Invoking the general jurisdiction of the High Court to transfer a case pending in any of its subordinate Court, this transfer petition has been filed by the petitioner praying for transfer of the Case No. F.C. (Civil) No. 61/2005 now pending for adjudication before the Principal Judge, Family Court, Kamrup at Guwahati to the Court of the learned District Judge, Sibsagar. The aforesaid case washed in the Family Court' by the husband respondent praying for nullity of the marriage that took place between the petitioner and the Respondent, under Section 12(1)(a) of Hindu Marriage Act, 1955 and for a decree of nullity.
2. It is an admitted fact that the parties are professing Hindu religion and their marriage, which was an arranged one, took place on 6.5.2004 according to Hindu Rites. Even before quelling the charm of the marriage ceremony and rituals, the divorce petition came to be filed by the husband respondent on 28.2.2005. before the Family Court, Guwahati to declare the marriage null and void. The petitioner wife was a permanent resident of Amguri town in the district of Sibsagar, which was her original place of residence before marriage. Difference having arose between the parties, now admittedly the petitioner is residing in heir original place of residence under the care and protection of the other members of her parental family at Amguri Town in the district of Sibsagar, Assam, which is stated to be 350 km. away from Guwahati. Expressing inconvenience and difficulty to contest the divorce proceeding before the Family Court at Guwahati, the petitioner has filed this transfer petition under Section 24 of the CPC it is, inter alia, alleged in the said transfer petition that the petitioner is now prosecuting her Degree Course In the Jhanjhi College In the district of Sibsagar and she has no source of income. The petitioner is dependent upon her parents and her attendance in the Family Court at Guwahati not only affects her studies but also it has other manifold ramifications. If is the further case of the petitioner that the respondent, who is a senior Engineer in the Tata Motors Limited, is staying at Guwahati and he is a well-to-do person and has no difficulty in attending the case in the Court of the learned District Judge at Sibsagar if the case is so transferred-from the Family Court at Guwahati.
3. An affidavit-in-opposition opposing the prayer made in this transfer petition has also been filed by the Respondent. The sole ground as can be visualized from the said; affidavit to oppose this transfer petition is that the relatives of the petitioner had threatened the Respondent with dire consequences if he visits Sibsagar. The said statement as made in paragraph 14 lacs material particulars. There is no foundation or basis for such an, apprehensive stand taken by the respondents. Again, it is not understood as to what occasioned to get such threatening at Sibsagar after filing such divorce petition as there is no averment that the respondent went to Sibsagar thereafter. These are unanswered questions that arose from the reading of the affidavit-in-opposition. In fact similar ground in paragraph 13(v) of the transfer petition is also taken by the petitioner. In paragraph 13(v), it is, inter alia, pleaded that the respondent and, his parents are influential person and not law abiding citizen as such if the petitioner comes to Guwahati for attending Court she would riot tie in safety of her life and her life may be jeopardized at any time.
4.1 have heard Mr. C. Baruah, learned Counsel appearing on behalf of the petitioner in support of this transfer petition and also Mr. S. Medhi, learned Counsel for the respondent-husband,
5. Both the learned Counsel for the parties have made elaborate arguments on the basis of their respective pleadings. Record disclose that this Court vide order dated 26.9.2005 directed the parties to appear before the Court on 17.11.2005 to make an attempt, for reconciliation and accordingly, on 17.11.2005 parties appeared, but it was reported by the parties before the Court that at present, there is no chance of reconciliation and accordingly, case was directed to be heard on merit vide order dated 17.11.2005.
6.I have considered the rival submissions made by the learned Counsel for the parties and also perused the materials available on record. The proceeding, in question, namely, F.C (Civil) No. 61/2005 is filed in the Family Court at Guwahati within the district of Kamrup. By this instant petition, the petitioner prays to transferring the said case to the Court of learned District Judge at Sibsagar such an order for inter district transfer of a case can be passed by the High Court in exercise of its general power of transfer and withdrawal as provided under Section 24 of the CPC. In this connection, we may gainfully refer to a decision of the Apex Court Kartar Singh v. State of Punjab and Ors. it paragraph 183 of the said judgment, the Apex Court held as follows:
Under Section 24 of the Code of Civil Procedure, the High Court and the District Court are given general power of transfer and withdrawal of cases either on an application of any of the parties after issuing notice and hearing them or on their own motion. Section 25 of the Code of Civil Procedure empowers the Supreme Court to transfer any suit, appeal and other proceedings from a High Court! Or civil count in one State to a High Court or other civil court in any other State on the application of a party and after issuing notice and hearing them.
7. Section 24 of the CPC has not laid down any condition or situation under what circumstances such a case can be transferred. It provides general and plenary power upon the High Court to make inter district transfer of a case within the jurisdiction of the High Court. Normally, on such a prayer for inter district transfer the Court is to see to the balance of convenience between the parties keeping in view of the basic principles of justice delivery system. It is further relevant for the Court to consider the position and status of the respective parties in the society taking note of the grounds taken in the transfer petition and the resultant justice or injustice that might occasion on refusal or acceptance of such prayer.
8. Mr. Baruah, learned Counsel for the petitioner has referred to a decision of this Court reported in 2004 (1) GLT 440 Durga Pandit v. Pradip Kr. Pandit in support of his case. Relying on the decision of the Apex Court Sunita Singh v. Kumar Sanjoy and Anr. this Court in the said case (Tr. P(C) No. 11/2003) passed an order to transfer the divorce proceeding, which was filed by the husband respondent against the petitioner, wife from the Family Court at Guwahati to the Court of learned District Judge, Sonitpur at Tezpur. The Apex Court in Sunita Singh (supra) at paragraph 3 held as follows:
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.
9. Thus, one of the relevant consideration for passing an order transferring a matrimonial proceeding from one district to another district filed against the, wife it is the wife's convenience that should be looked into. Again, there will be a Question to be considered as to what constitute such 'convenience'. It is difficult to lay down within a straight-jacket formula the necessary condition which constitute convenience. It will vary from case to case. Admittedly, such 'convenience' is required 'to be taken note of so, that no injustice is caused to the parties seeking for such transfer, which is based on the sound principle of administration of justice that the parties should get proper opportunity to contest their case. On such principle, although under Section 24 of the CPC, the High Court on its own motion can transfer a case, in normal circumstances High Court usually issues notice to the aggrieved parties. This is done for fair play in the administration of justice. On the above principles a prayer made by a husband petitioner also may be considered in appropriate case.
10. In the case in hand, the petitioner is a young lady of 22 years of age. She is prosecuting her studies in Jhanjhi College in the district of Sibsagar. The husband respondent is a senior Engineer in Tata Motors Limited serving at Guwahati. The petitioner has no independent income and she is dependent or the members of her parental family. After marriage also she is now residing in her parent's house changing her status from maiden to marital one. In order to attend the Family Court to contest the proceeding, the petitioner is to travel by bus from a distance of 350 km. That apart there is also question of her stay and rest at Guwahati. All these factors unerringly point out that if the case is transferred to the Court of the learned District Judge at Sibsagar it will be convenient for the wife to contest the proceeding otherwise it may amount to refusing her access to justice. On the other hand, there would be least inconvenience for the husband respondent to contest the proceeding in the Court of learned District Judge at Sibsagar.
11. For the reasons stated hereinabove, this transfer petition is allowed. The learned Principal Judge, Family Court at Guwahati shall immediately transfer the matrimonial proceeding being F.C. (Civil) No. 61/2005 pending in its Court to the Court of the learned District Judge at Sibsagar for necessary disposal.
12. As agreed to by both the learned Counsel for the parties, the petitioner and the respondent shall appear store the Court of the learned District Judge at Sibsagar on 30.1.2006 to receive further instruction in the matter.
13. With the above observations and directions, this transfer petition stands allowed.
14. No costs.