Gujarat High Court
Hansaben D/O Devji Arjan Bhuva vs Prakashbhai Hansrajbhai ... on 15 January, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/MCA/2851/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR TRANSFER) NO. 2851 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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HANSABEN D/O DEVJI ARJAN BHUVA....Applicant(s)
Versus
PRAKASHBHAI HANSRAJBHAI KUCHADIYA....Opponent(s)
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Appearance:
MR SHASHVAT SHUKLA, ADVOCATE for MR P P MAJMUDAR, ADVOCATE
for the Applicant(s) No. 1
RULE SERVED for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 15/01/2016
ORAL JUDGMENT
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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 HMP No.44 of 2015 pending with the learned Principal Senior Civil Judge, Bardoli to the competent Court at Porbandar.
2. It is the case of the applicant that she resides at Porbandar and got married with the opponent on 16.2.1997 as per Hindu rites and rituals and out of the said wedlock, they have two sons, namely, Kutesh, aged about 17 years and Rohan aged about 13 years and the elder son Kutesh is residing with the opponent and younger son Rohan is residing with the applicant. Whereas the respondent - opponent has preferred HMP No.44 of 2015 in the Court at Bardoli only with a view to harass the applicant mentally as well as physically. It is submitted at bar that it will not be possible for the applicant to travel along with her son Rohan and it would be physical and mental harassment to both to travel on each adjournment from Porbandar to Bardoli. It is also submitted by the applicant that she has filed proceedings under section 125 of the Code of Criminal Procedure, 1973 before the Court at Porbandar and the same is pending. The applicant further submits that on one occasion, the opponent had quarreled with the family members of the applicant and threatened the applicant with dire consequences and therefore, there is a danger to the life of the applicant from the opponent. In support of the application, learned advocate Mr. Shashvat Shukla appearing for learned advocate Mr. Majmudar for the applicant has relied upon decision in case of Sumita Singh V. Kumar Sanjay and another reported in AIR 2002 SC 396, in case of Shobhnaben D/o Pyarelal Kanojia Page 2 of 4 HC-NIC Page 2 of 4 Created On Sat Jan 16 02:31:02 IST 2016 C/MCA/2851/2015 JUDGMENT 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 Sunandaben Sanjay Patil Vs. Sanjay Narayan Patil rendered by this Court on 11.7.2008.
3. Though the respondent was served with Rule, he did not appear before the Court to oppose the present application and thus, the averments made in the application remain uncontroverted.
4. Having heard the submissions made by learned advocate Mr. Shukla 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 at Porbandar at her parental home. 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 HMP No.44 of 2015 from Bardoli Court to Porbandar Court, because the distance between the two place is 590 km. 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 Jan 16 02:31:02 IST 2016 C/MCA/2851/2015 JUDGMENT with thirteen years old son, who faced much more incoveniency during journey from her current place i.e. from Porbandar to Bardoli,
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 HMP No.44 of 2015 pending in the learned Principal Senior Civil Judge, Bardoli be transferred to the Court of learned Principal District Judge, Porbandar and in turn, the learned Principal District Judge, Porbandar is directed to transfer the said proceedings to appropriate Court under his jurisdiction. With this, present Misc. Civil Application stands allowed. Rule is made absolute accordingly.
(S.H.VORA, J.) shekhar Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Jan 16 02:31:02 IST 2016