Calcutta High Court (Appellete Side)
Sri Kedar Nath Kundu vs Smt. Mandira Kundu (Sahu) on 6 August, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 06.08.2019
suman 03 Ct.25 C.O. 1068 of 2019 Sri Kedar nath Kundu Vs. Smt. Mandira Kundu (Sahu) Mr. Animesh Das ...for the petitioner Mr. Tapan Kumar Jana ...for the opposite party A failed marriage between the parties led to filing of series of litigations. Most of the litigations were instituted by the opposite party against the petitioner. Instances of such litigations are as follows:-
(i) Shibpur P.S. Case No.266 of 1991 under Section 498A /34 of the Indian Penal Code corresponding to G.R. Case No.1707 of 1991.
(ii) Complaint Case No.1115C of 1991 before the 4th Court of the learned Judicial Magistrate at Howrah under Section 406 of the Indian Penal Code.
(iii) Title Suit No.202 of 2008 filed in the 2nd Court of the learned Civil Judge (Junior Division) at Howrah for declaration that marriage between 2 the present opposite party and the petitioner herein is subsisting and also for permanent injunction.
(iv) Proceedings under Section 144 (2) of the
Code of Criminal Procedure before the
Executive Magistrate, Howrah.
(v) Application under Section 125 of the Code of
Criminal Procedure praying for maintenance against the petitioner.
(vi) Subsequent application under Section 127 of
the Code of Criminal Procedure for
enhancement of maintenance allowance.
(vii) A proceeding under Section 12 read with Sections 18/19/20/22/23 of the Protection of Women from Domestic Violence Act, 2005 pending before the learned Chief Judicial Magistrate, Howrah.
Admittedly the above litigations were filed by the opposite party in different Courts having jurisdiction at Howrah. It is also not disputed that previously the petitioner made an application for transferring miscellaneous execution case arising out of the order passed under Section 125 of the 3 Code of Criminal Procedure from Howrah Court to any other Court of competent jurisdiction at Alipore by filing a revisional application before this Court. This Court rejected the said application for transfer of the execution case from Howrah Court to Alipore Court by an order dated 21st September, 2000 in CRR No.790 of 2000.
Subsequently the opposite party has filed a suit for restitution of conjugal rights of MAT Suit No.129 of 2018 praying for restitution of conjugal rights in the Court of the learned District Judge, South 24 Parganas at Alipore.
The petitioner /husband has filed the instant application under Section 24 of the Code of Civil Procedure praying for transfer of the said matrimonial suit from the Court of the learned District Judge, South 24 Parganas at Alipore to the Court of the learned District Judge at Howrah mainly on the grounds that all previous litigations were filed by the wife/opposite party at Howrah Court. Secondly, Howrah Court has the jurisdiction to try the said suit because the opposite party /defendant ordinarily resides in the jurisdiction of Howrah Court. Thirdly, the petitioner is a retired person who is now aged about 62 years. He is suffering from osteoporosis and eye disease. Fourthly, the 4 petitioner will face physical hardship to attend the Court at Alipore from Satragachi, Howrah.
Mr. Animesh Das, learned advocate for the husband/petitioner submits that except MAT Suit No.129 of 2018, the opposite party instituted all other cases in different Courts at Howrah only to harass the present petitioner. This suit was filed by the petitioner before the learned District Judge, South 24 Parganas at Alipore. In this regard he refers to a decision of the Hon'ble Supreme Court in the case of Rakhi Banejee vs. Subhankar Mukherjee reported in 2009 (1) CLJ (SC) 238 where the Hon'ble Supreme Court favourably considered factual position that except the matrimonial suit all other cases were instituted in West Bengal while the matrimonial suit was instituted by the husband at Chennai and allowed the prayer for transferring the said matrimonial suit from Channai to West Bengal under applying the provision under Section 25 of the Code of Civil Procedure.
It is further submitted by the learned counsel for the petitioner placing reliance upon the decision of the Hon'ble Supreme Court in the case of Vandana Sharma vs. Rakesh Kumar Sharma reported in 2008 (2) CLJ (SC) 255 that 5 the Court should consider comparative hardship and genuine difficulty of the parties in attending a particular Court to contest the suit i.e., the prime consideration which should be taken care of by the Court while disposing of the application under Section 24/25 of the Code of Civil Procedure. According to the learned advocate for the petitioner, the petitioner who is a patient of eye ailment and osteoporosis will have to travel a distance of about 18 kilometers from his residence to attend Alipore Court to contest the said matrimonial suit. On the contrary, the opposite party will have to take journey of about 8/9 kilometers from her residence to reach Howrah Court. Therefore, the said matrimonial suit ought to be transferred to the Court of the learned District Judge, Howrah.
Learned advocate for the opposite party, on the other hand submits that the opposite party instituted the cases and proceedings against the petitioner at Howrah being wrongfully advised by her advocate. Since the opposite party filed certain cases at Howrah Court, it cannot be said that the Matrimonial Suit No.129 of 2018 ought to be transferred to Howrah. It is further submitted by the learned counsel for the opposite party that in a proceeding under 6 Section 24 of the Code of Civil Procedure arising out of the matrimonial suit convenience of the wife is the paramount consideration. The wife/opposite party resides at Kalighat. Alipore Court is at a distance of about 5 minutes travelling from her residence. On the contrary, she will have to take a journey of considerable distance to reach Howrah Court. Therefore, if the said matrimonial suit is transferred to Howrah Court, the opposite party will suffer hardship.
On due consideration of submission made by the learned counsels for the parties and after careful perusal of the application under Section 24 of the Code of Civil Procedure as well as the documents filed by the learned counsels for the parties at the time of hearing, it is found that undisputedly the opposite party instituted all cases except Matrimonial Suit No.129 of 2018 in different Courts at Howrah. Some of the cases have already been disposed of. Some other cases are still pending. One of such pending case is a proceeding under the Protection of Women from Domestic Violence Act, 2005. If the said proceedings were wrongly filed by the opposite party in a wrong Court on the basis of wrong advice of her learned advocate she could have made an application for transfer of those cases to any other 7 Court of competent jurisdiction. She has not taken any such step. Even today, she has been carrying on the proceeding under the provision of Protection of Women from Domestic Violence Act, 2005 against her husband in the Court of the learned Chief Judicial Magistrate, Howrah. It is needless to say that the opposite party must attend Howrah Court at a regular interval to represent her case/cases. She never came forward pleading her hardship to represent the case/cases instituted by her at Howrah Court under various provisions of different statutes.
It is not disputed that the husband petitioner is aged about 62 years. The opposite party has not also disputed by filing an affidavit-in-opposition regarding various ailments the petitioner is suffering.
Since all other proceedings were instituted in Howrah Court, I am of the view that the opposite party can maintain Matrimonial Suit No.129 of 2018 against the petitioner at Howrah Court and she will not face any inconvenience to reach Howrah Court specially when it is found that she has been attending Howrah Court to represent the cases filed by her against the present petitioner.
8
In view of the above discussion, I am inclined to allow the application under Section 24 of the Code of Civil Procedure.
The Matrimonial Suit No.129 of 2018 presently pending before the 13th Court of the learned Additional District Judge, South 24 Parganas at Alipore be transferred to the Court of the learned District Judge at Howrah for trial and disposal.
Office is directed to send copy of this order to both the learned Additional District Judge, 13th Court, South 24 Paranas at Alipore and the learned District Judge at Howrah for information and compliance of this order forthwith.
The present revisional application is allowed on contest, however, without cost.
Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Bibek Chaudhuri, J.)