Gujarat High Court
Binaben Wife Of Parasbhai Pitroda And ... vs Parasbhai Kantibhai ... on 17 March, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/MCA/3043/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR TRANSFER) NO. 3043 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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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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BINABEN WIFE OF PARASBHAI PITRODA AND DAUGHTER OF
LALITBHAI UMRANIYA....Applicant(s)
Versus
PARASBHAI KANTIBHAI PITRODA....Opponent(s)
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Appearance:
MRS REKHA H KAPADIA, ADVOCATE for the Applicant(s) No. 1
MS NAVDEEP N BHASIN, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 17/03/2016
ORAL JUDGMENT
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HC-NIC Page 1 of 4 Created On Sat Mar 19 02:37:34 IST 2016 C/MCA/3043/2015 JUDGMENT
1. Present application under section 24 of the Code of Civil Procedure, 1908 (for short "the Code") is filed by the applicant
- wife to transfer H.M.P.No.17 of 2015 pending with the learned 2nd Additional Principal Senior Civil Judge, Junagadh to the Court of the learned Chief Judicial Magistrate, Amreli or Court of the learned Principal Senior Civil Judge, Amreli or any Court at Amreli.
2. It is the case of the applicant that she resides at Amreli and got married with the opponent - husband on 08.12.2014 as per Hindu rites and rituals, whereas the opponent husband has preferred H.M.P. No.17 of 2015 in the Court at Junagadh under section 13 of the Hindu Marriage Act inter alia praying for a decree of divorce. It is the case of the applicant that it will not be possible for the applicant to travel along with her two minor children i.e. daughter aged 10 years and son aged 6 years and are studying in primary school and it would be physical and mental harassment to them to travel about 125 km on each adjournment from Amreli to Junagadh alongwith minor children. It is also submitted by the applicant that she has filed proceedings under Sections 125 of the Code of Criminal Procedure, 1973 for maintenance amount which is not being paid regularly by the opponent - husband. She also filed proceedings under the provisions of the Domestic Violence Act Amreli which are pending. In support of the application, learned advocate Mrs.R.H. Kapadia appearing for the applicant has relied upon decisions in case of Sumita Singh V. Kumar Sanjay and another reported in AIR 2002 SC 396, in case of Shobhnaben D/o Pyarelal Kanojia reported in (2004) GLR 893, in case of Sonal Shreyansh Vasa V. Shreyansh Hitenbhai Vasa reported in (2013) 3 GLR 2759 as well as in case of Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Mar 19 02:37:34 IST 2016 C/MCA/3043/2015 JUDGMENT Sunandaben Sanjay Patil Vs. Sanjay Narayan Patil rendered by this Court on 11.7.2008.
3. On the other hand, learned advocate Ms.Bhasin appearing for the opponent opposed the application. She has contended that since the opponent is doing labour work in Junagadh, it is inconvenient to him to attend the proceedings at Amreli on every adjourned date. Therefore, she has requested to dismiss the application.
4. Having heard the submissions made by learned advocate Mrs.R.H. Kapadia for the applicant, it is not in dispute that the applicant is the wife of the opponent and there is a matrimonial dispute between the parties to the proceedings and further, the applicant is residing alone at Amreli. In case of Sumita Singh (supra), the Hon'ble Supreme Court has observed that wife's inconveniency must be looked at. The purpose of section 24 of the Code is merely to confer on the Court a discretionary power and therefore, while acting under Section 24 of the Code, the Court may or may not in its judicial discretion transfer a particular case. Thus, the power under section 24 of the Code is discretionary in its nature and can be exercised at any stage. In the present case, the fairness of judicial proceedings is not questioned by the applicant, but on the ground of conveniency, the applicant is keen to transfer H.M.P. No.17 of 2015 pending with the learned 2nd Additional Principal Senior Civil Judge, Junagadh to the competent Court at Amreli. In light of this position, the Court cannot ignore inconveniency of party, more particularly, the applicant being a lady, who requires more safety and security in journey from unwarranted elements and further, the applicant being lady Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Mar 19 02:37:34 IST 2016 C/MCA/3043/2015 JUDGMENT with two minor kids, who faced much more incoveniency during journey from her current place i.e. from Amreli to Junagadh.
5. In view of the above circumstances, and considering the facts narrated herein above which is sufficient to accept the present application and accordingly, present application is allowed and it is ordered that H.M.P. No.17 of 2015 pending with the learned 2nd Additional Principal Senior Civil Judge, Junagadh be transferred to the Court of the learned Principal District Judge, Amreli and, in turn, the learned Principal District Judge, Amreli is directed to transfer the said proceedings to appropriate Court under his jurisdiction.
6. With this, present Misc. Civil Application is allowed. Rule is made absolute to the aforesaid extent with no order as to costs. Direct service is permitted.
7. However, the opponent - husband is at liberty to request the concerned Court for expeditious hearing of the petition.
(S.H.VORA, J.) Hitesh Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Mar 19 02:37:34 IST 2016