Gujarat High Court
Rekhaben Kiranbhai Bariya vs Kiranbhai Kanubhai Bariya on 16 March, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1159
Author: B.N. Karia
Bench: B.N. Karia
C/MCA/1172/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 1172 of 2019
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REKHABEN KIRANBHAI BARIYA
Versus
KIRANBHAI KANUBHAI BARIYA
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Appearance:
CHHATRADHARI G PASI(8891) for the Applicant
VASIMRAJA A KURESHI(8609) for the Applicant
NOTICE SERVED BY DS(5) for the Opponent
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 16/03/2020
ORAL ORDER
1. By way of present application, present applicant is seeking transfer of the proceedings of Criminal Misc. Application no. 31 of 2019 preferred by the respondent husband under Guardian and Wards Act, pending with Additional District Court, Chhota Udepur to competent Court at Vadodara, as the present applicant is residing at Vadodara with her parents.
2. The brief facts of the case, as could be gathered from the memo of the application, are required to be setout as under : 2.1 The marriage of the present applicant was solemnized Page 1 of 6 Downloaded on : Wed Mar 18 21:36:35 IST 2020 C/MCA/1172/2019 ORDER with the present respondent on 24th April 2011 as per the Hindu rites and rituals at Vadodara and after that the present applicant was residing with her husband.
2.2 Thereafter, out of the wedlock with the respondent, the present applicant delivered two baby girls. However, it is stated that at during the pregnancy, she was subjected to physical and mental cruelty by the respondent - husband and his inlaws. It is stated that the inlaws were not taking care of the present applicant. Due to the harassment, present applicant hospitalized at Vadodara and during that period also the inlaws were not taking care of the applicant.
2.3 It is stated that demand of dowry and harassment was also made by the respondent - husband during the pregnancy of the present applicant. Thereafter, the present applicant left her matrimonial home and went to her parents' home at Vadodara. 2.4 It is further submitted that the applicant has no source of income for her livelihood. An application for maintenance was also filed by the present applicant in which learned Family Court, Vadodara has awarded maintenance of Rs.5,000/. However, the Page 2 of 6 Downloaded on : Wed Mar 18 21:36:35 IST 2020 C/MCA/1172/2019 ORDER respondent has never paid a single rupee towards maintenance and therefore, it is very difficult for the present applicant to attend the proceedings at Chhota Udepur.
2.5 It is further stated in the application that on each and every adjournment before the Chhota Udepur the applicant has to travel there to attend the proceedings filed by the respondent - husband, which is very difficult for her. Being a lady and mother of two infants, it is not possible for the present applicant to travel to Chhota Udepur to attend the proceedings.
2.6 The present applicant is residing at Vadodara with her parents. The distance between Chhota Udepur to Vadodara is about 118 kms. one way. Hence, she filed the present application seeking transfer of the proceedings being Civil Misc. Application no.31 of 2019 filed by the respondent - husband pending before the Chhota Udepur.
3. The cause list shows that notice was served to the respondent. The present applicant has also filed service affidavit stating that on 18th January 2020 at about 12:03 pm, the respondent was personally served notice and signature was Page 3 of 6 Downloaded on : Wed Mar 18 21:36:35 IST 2020 C/MCA/1172/2019 ORDER obtained on original writ. The papers also shows that notice was duly served to the opponent and concerned bailiff has also filed his report regarding service of the notice on the respondent. However, though notice was served to the respondent, he has not bothered to appear before this Court to contest this application.
4. Learned advocate appearing for the applicant submitted that present applicant is residing along with her parents at Vadodara and it is difficult for her to attend the proceedings at Chhota Udepur. It is also submitted that the present applicant does not have any source of income for her livelihood.
5. It is further submitted that the present applicant has filed application under Section 125 of the Criminal Procedure Code, 1973 for maintenance before the Hon'ble Family Court at Vadodara being Criminal Misc. Application no.553 of 2019. The same was allowed and the respondent was ordered to pay Rs.5,000/ per month as maintenance to the present applicant. Except that, the present applicant has no income. However, the respondent has not paid any amount towards maintenance as awarded by the Family Court, Vadodara.
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6. It is submitted that the respondent - husband has filed application under Section 25 of the Guardian and Wards Act before the Addl. District Judge, Chhota Udepur. It is also submitted that the applicant being a lady, having responsibility of her infant daughters, it is very difficult for her to travel 118 kms. one way to Chhota Udepur to attend the proceedings from Vadodara, where she resides with her parents. It is further submitted that there are other proceedings which are pending at Vadodara against the respondent and therefore no prejudice or harm is caused to the respondent if the present application is allowed.
7. No one appears for the respondent - husband.
8. Having considered the facts of the case, submissions made by the learned advocates appearing for the applicant, it appears that the applicant is staying at Vadodara and she has preferred an application u/s.125 of the Code of Criminal Procedure of maintenance being Criminal Misc. Application no.553 of 2019 before the Family Court, Vadodara. It is stated by the learned advocate for the applicant that in the aforesaid application preferred by the present applicant, final order was passed and Page 5 of 6 Downloaded on : Wed Mar 18 21:36:35 IST 2020 C/MCA/1172/2019 ORDER maintenance was awarded. Thereafter, no amount of maintenance was paid. Recovery application under Section 125 is also preferred by the applicant. It also appears that respondent is also preferred Criminal Misc. Application no.31 of 2019 before the learned Addl. District Judge, Chhota Udepur under Section 25 of the Guardian and Wards Act. The distance between Vadodara and Chhota Udepur is approximately 118 kms. one way. The petitioner being a lady would suffer more inconvenience and hardship to attend the proceedings at Chhota Udepur initiated by the respondent - husband under Section 25 of the Guardian and Wards Act. Therefore, it is desirable to transfer matrimonial litigation at the place where the wife is residing.
9. In the result, the prayer made by the present applicant is allowed, Civil Misc. Application no.31 of 2019, filed by the respondent - husband, pending before the learned District Court, Chhota Udepur shall be transferred for adjudication to the Family Court at Vadodara.
(B.N. KARIA, J.) AMAR RATHOD...
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