Calcutta High Court (Appellete Side)
2189/2010 on 4 April, 2011
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1 8 04.04.11
C.O. 2189 of 2010.
Mr. Subrata Roy Karmakar Mr. Sanjay Bhattacharjee ... For the Petitioner.
Mr. Somnath Mukherjee ... For the O.P. The wife/petitioner is residing at Bidyabati, District-Hooghly and the husband/opposite party is residing at Alipurduar, District-Jalpaiguri.
It appears that the wife/petitioner has already lodged a complaint with the police at Jalpaiguri and a proceeding under Section 498A I.P.C has already been started against the husband/opposite party at Jalpaiguri. The said proceeding is pending. It also appears that at the instance of the husband/opposite party a proceeding has been initiated at Jalpaiguri under Sections 323/379/341/34 I.P.C and such proceeding is also pending. The husband/opposite party has filed an application under Section 8 of the Special Marriage Act, 1954 being Matrimonial Suit No. 80 of 2009 which is now pending in the Court of the learned Additional District Judge At Alipurduar, District-Jalpaiguri. The said S.D. 2 proceeding has been brought by the husband/opposite party against the wife/petitioner. The wife/petitioner, in the present application under Section 24 C.P.C., has prayed for transfer of the said Matrimonial Suit to the Court of the learned District Judge at Hooghly.
The learned Advocate appearing on behalf of the wife/petitioner submits that the wife/petitioner apprehends that she will suffer physical injury in the hands of the husband/opposite party and his men and agents if the wife/petitioner has to visit the learned Court concerned at Alipurduar. He also submits that considering the distance involved between the petitioner's residence and the learned Court concerned where the said Matrimonial Suit is pending it is only fit and proper that the present application under Section 24 C.P.C. should be allowed. The learned Advocates appearing before this Court do not dispute that the parties do not have any child.
The learned Advocate for the husband/opposite party submits by referring to Paragraph 5 of the said application for restitution of conjugal rights that the husband/opposite party is a Railway Employee and it is 3 necessary for the husband/opposite party to discharge his duties sincerely and with utmost care. Though it is not stated in the said application, the said learned Advocate has submitted that the husband/opposite party drives trains and it is extremely difficult for the husband/opposite party to obtain leave for the purpose of attending the Matrimonial Suit at a distant place.
The learned Advocate for the wife/petitioner has referred to a decision reported at AIR 2005 Supreme Court, 3119 in support of his application under Section 24 C.P.C. It appears from the said reports that the wife/petitioner sought for transfer of a certain Matrimonial Suit from a certain Court at West Bengal to a certain Court at Bihar. It further appears that the husband/opposite party in spite of notice did not come forward to contest the said application. It also appears from the said reports that the wife/petitioner alleged that she apprehended a serious threat and bodily injury or death if she has to go to West Bengal and that she did not have sufficient money to go to West Bengal and engage Counsel over there. Such allegations by the wife/petitioner were not opposed by her husband in the 4 said reports.
In the present case the husband/opposite party is contesting the application under Section 24 C.P.C through his learned Advocate and the said learned Advocate has disputed the allegations made by the wife/petitioner. The said learned Advocate has submitted that the wife/petitioner has made an application for maintenance in the said Matrimonial Suit itself and she has also filed an application under Section 125 Cr.P.C for appropriate alimony. There is no dispute that the parties to the litigation do not have any child. The wife/petitioner, if the occasion so arises, will be entitled to make appropriate application before the learned Trial Court concerned for appropriate directions upon the husband/opposite party for meeting her expenses as she may have to incur for the purpose of attending the Matrimonial Suit where it may be pending and if such application is filed the learned Trial Court will have to decide the same in accordance with law.
In the present case since the wife/petitioner has made an allegation that she seriously apprehends threat to her person and such apprehension is very serious, as 5 alleged in the Paragraph 10 of the application, this Court is of the view that the said Matrimonial Suit should be transferred from the learned Court at Alipurduar. However, considering the convenience and inconvenience of both the parties, this Court is of the further view that if the said Matrimonial Suit is transferred to the Court of the learned District Judge at Malda justice will be done to the parties. The petitioner's apprehension is only with regard to appearance at Alipurduar and no other place. In such circumstances, the Matrimonial Suit can be conveniently transferred to the Court of the learned District Judge at Malda.
In view of the discussions made above, the application under Section 24 C.P.C is disposed of by directing that the Matrimonial Suit No. 80 of 2009, pending in the Court of the learned Additional District Judge at Alipurduar, Jalpaiguri, along with its records, be transferred to the learned District Judge at Malda and after such transfer takes effect, the learned District Judge, Malda may either try and dispose of the Suit himself or he may assign the said Suit to a competent Court within his Judgeship.
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Urgent xerox certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Tapan Kumar Dutt, J.)