Gauhati High Court
Nisha Nanda Modi vs Hari Modi on 20 June, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010181922021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(C)./59/2021
NISHA NANDA MODI
W/O HARI MODI, PRESENTLY RESIDING AT VILL. MAJGAON, NEAR B.ED
COLLEGE, P.S.TEZPUR, DIST. SONITPUR, ASSAM, PIN 784001
VERSUS
HARI MODI
S/O LATE HARENDRA MODI, R/O KAHILIPARA DPI, JANAKPUR ROAD,
ANTARA PATH, KANAK PROVA ENCLAVE, 1ST FLOOR, GUWAHATI 781019,
P.S. DISPUR, DIST. KAMRUP (M), ASSAM.
Advocate for the Petitioner : MR. S C BISWAS
Advocate for the Respondent : MR. N B P SINGHA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Heard Mr. S.C. Biswas, the learned counsel for the petitioner and Mr. N.B.P. Singha, the learned counsel for the respondent.
This application has been filed under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of F.C.(Civil) Case No.883/2021 Page No.# 2/5 from the Court of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati to the Court of the District Judge, Sonitpur, Tezpur.
The case of the petitioner before this Court in brief is that the marriage between the petitioner and the respondent was solemnized on 12.02.2009 at Krishna Nagar, Hojai, Assam and started their conjugal life as husband and wife. After about 9 (nine) years of their marriage, a female child was born to them on 04.10.2018 through invitro fertilisation (IVF). In the instant petition, there have been various allegations made to the effect that the petitioner was subjected to various physical and mental tortures by the respondents and her in-laws for not able to conceive and bringing insufficient dowry as well as for not able to give birth to any male child. It has been further alleged that the father of the petitioner paid a huge amount to the respondent at the time of buying a flat at Guwahati and thereafter the respondent forced the petitioner for payment of EMI of the flat by her father. It has been alleged that besides physical and mental torture to the petitioner, the respondent and his family members attempted to kill her and her daughter. Finding no other option, the petitioner filed a complaint before the Assam Police Women Cell and also a case being Dispur P.S. Case No.2972/2021 under Section 498(A) of IPC along with a case under Domestic Violence Act, 2005 being D.V. Case No.06/2021 which is still pending before the Court of the Judicial Magistrate, First Class, Kamrup (M), Guwahati. It has been further alleged that the respondent also lodged a false case against the father of the petitioner and others which was registered as BI(EO) Case No.04/2021 in which her father was granted interim bail. It has been further alleged that the respondent threatened the petitioner and her Page No.# 3/5 family members with dire consequences. The respondent had filed a petition before the Principal Judge, Family Court No.1, Kamrup (M), Guwahati praying for a decree of divorce for dissolving the marriage between the petitioner and the respondent. The said proceeding has been registered and numbered as F.C.(Civil) No.883/2021. Summon was issued to the petitioner directing her to appear before the said court on 11.11.2021.
The grounds taken by the petitioner in the instant application for transfer are that the petitioner is residing alone with her daughter at Tezpur and that her daughter is still a sucking baby and there is no adult male member to accompany her to contest the suit at Guwahati. The petitioner states that she has no source of income to maintain her and her child. The petitioner is also on constant threat from the respondent and as such it would be difficult on her part to travel from her residence at Majgaon, Sonitpur, Tezpur to Guwahati and to appear before the Court of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati. As such, the petitioner prayed to transfer the F.C.(Civil) No.883/2021 from the Court of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati to the Court of the District Judge, Sonitpur at Tezpur.
This Court on the basis of the said application had issued noticed on 08.11.2021 and stayed further proceeding in F.C. (Civil) Case No. 883/2021 pending in the Court of the Principal Judge, Family Court No.1, Kamrup (M), at Guwahati.
I have heard the learned counsels for both the parties.
It has been admitted in the bar that there is no Family Court Page No.# 4/5 established in terms with Section 3 of the Family Court Act, 1984 in the district of Tezpur and the divorce proceedings under the Hindu Marriage Act, 1955 are taken up by the Court of the District Judge at Tezpur. Under such circumstances, the embargo under Section 13 of the Family Court, 1984 which stipulates the mandatory necessity of the appearance of the parties before the Family Court is not applicable to the matrimonial proceedings before the District Judge at Tezpur save and except if the court so directs. Further as the proceedings before the District Judge at Tezpur are conducted as per the provision of the Code of Civil Procedure, 1908, it is only at the stage of cross-examination that a party has to be physically present in the said court or before the Commissioner.
In the backdrop of the said submission, this Court therefore needs to take into consideration as what inconvenience would be caused to the parties, if the matrimonial proceedings are allowed to be continued before the Court of the District Judge at Tezpur. As the embargo which is being imposed under section 13 of the Family Courts Act, 1994 is not applicable before the Court of the District Judge at Tezpur, the respondent can very well participate in the said proceedings through a legal practitioner and it is not required for him to appear on each and every date save and except when directed by the Court wherein the said divorce proceedings are pending or to face the cross-examination. On the other hand, in the proceedings before the Family Court at Guwahati, the parties are required to appear in person, though they may be entitled to seek the assistance of Amicus Curiae.
Taking into consideration that the petitioner has expressed difficulties in her participation in the proceedings at Guwahati as she is a Page No.# 5/5 lady having no source of income and the convenience and inconvenience being taken into consideration, this Court is of the opinion that ends of justice would be met if the petitioner's prayer for transfer of the proceedings from the Court of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati to the Court of the District Judge, Sonitpur at Tezpur is allowed.
Accordingly the proceedings in F.C.(Civil) No.883/2021 is transferred from the Court of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati to the Court of the District Judge, Sonitpur at Tezpur.
The Court of the Principal Judge, Family Court No.1, Kamrup (M), Guwahati is directed to forthwith transfer the records to the Court of the District Judge, Sonitpur at Tezpur.
With the above observations, the instant petition stands allowed and disposed of.
The parties shall appear before the Court of the District Judge, Sonitpur at Tezpur on 29.07.2022 and on which date the petitioner shall file her written statement without fail.
Registry is directed to intimate both the courts below about this order.
The interim order passed earlier stands vacated.
JUDGE Comparing Assistant