Calcutta High Court (Appellete Side)
Manashi Das (Nandi) vs Ajoy Nandi on 20 August, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1
20.08.2019
suman 5
Ct.25
C.O. 1202 of 2019
Manashi Das (Nandi)
Vs.
Ajoy Nandi
Mr. Soumik Ganguli
Mr. Sourat Nandy
..for the petitioner
Mr. Sanjib Bandyopadhyay
Mr. Alokasis Bandopadhyay
..for the respondent
This is an application under Section 24 of the Code of Civil Procedure filed by the wife /petitioner praying for transfer of Matrimonial Suit No.36 of 2019 pending before the learned District Judge at Barasat to the Court of the learned District Judge at Bankura.
It is found from the application that the opposite party /husband filed a suit for dissolution of marriage by a decree of divorce under Section 13 of the Hindu Marriage Act against the petitioner before the learned District Judge, Barasat being MAT Suit No.36 of 2019. Undisputedly the opposite party previously filed MAT Suit No.20 of 2017 against the petitioner before the learned District Judge, Bankura praying for the same relief. The said suit was subsequently 2 transferred to the 2nd Court of the learned Additional District Judge, Bankura and renumbered as MAT Suit No.311 of 2016. As the opposite party failed to take step in the said suit, it was dismissed for default. It also transpires from the application that in the said MAT Suit No.311 of 2016, the petitioner entered appearance and filed an application praying for alimony pendente lite which was registered as J. Misc. Case No.02 of 2017. Upon a contested hearing the opposite party was directed to pay alimony to the petitioner to the tune of Rs.10,000/- per month. The petitioner, on the other hand, filed an application under Section 125 of the Code of Criminal Procedure praying for maintenance allowance from the opposite party. An order was passed by a competent Court directing the opposite party to pay interim maintenance at the rate of Rs.5,000/- per month till disposal of the said application. The petitioner has pleaded that the opposite party has not paid either alimony granted in a proceeding under Section 24 of the Hindu Marriage Act or maintenance allowance granted in another proceeding under Section 125 of the Code of Criminal Procedure. It is important to note that such facts are not denied by the opposite party. It is stated by the petitioner that she has 3 been residing at Bankura. Distance from Bankura to Barasat Court is about 218 kilometers. There is no direct communication from Bankura to Barasat. She has no source of income to attend Barasat Court on each and every day travelling a distance of about 436 kilometers in both ways to contest the matrimonial suit. On the other hand, the opposite party has been contesting the proceeding under Section 125 of the Code of Criminal Procedure at Bankura Court. Therefore, it can be presumed that the opposite party will face no inconvenience if the suit is transferred to Bankura Court.
Mr. Ganguli, learned advocate for the petitioner submits to the tune of the application filed by the petitioner.
Mr. Sanjib Bandyopadhyay, learned advocate for the opposite party, on the other hand, submits that the opposite party resides within the jurisdiction of the learned District Judge, Barasat. He has ailing parents in his house to whom he is looking after. If the suit is transferred from Barasat to Bankura, the opposite party will suffer inconvenience.
It is further submitted by the learned counsel for the opposite party that while passing an order under Section 24 of the Code of Civil Procedure arising out of matrimonial suit, 4 not only the inconvenience of the wife, but also balance of convenience and inconvenience of both the parties should be taken into consideration.
Learned counsel for the opposite party further submits that if the prayer of the petitioner is allowed, then the petitioner could have taken the plea of res judicata in respect of the maintainability of the Matrimonial Suit No.36 of 2019. The petitioner should not be given such opportunity to frustrate the lawful prayer of the opposite party.
In turn, Mr. Ganguli draws my attention to the cause title of the plaint of Matrimonial Suit No.36 of 2019 to show that the opposite party has been residing at village Kalatalahat, P.S. Ramnagar within the district of South 24 Parganas.
On due consideration of the submission made by the learned counsels for the parties and also after perusal of the application as well as the documents annexed thereto, I like to record at the outset that the Hindu Marriage Act contemplates jurisdiction of the Court to try a suit for divorce. A suit for divorce under the Hindu Marriage Act may be filed in a Court under whose jurisdiction the marriage was solemnized, secondly, in a Court where the parties last 5 resided together and thirdly, in a Court where the wife resides. From the plaint of Matrimonial Suit No.36 of 2019 it is found that admittedly marriage between the parties was solemnized at Nabapally, P.O. Kenduadihi under P.S. and District- Bankura. As per pleading of the opposite party the parties resided together at a rented house at Garia and lastly at R.N. Guha Road, Kolkata- 700028. It is also not disputed that the wife of the opposite party has been residing now at Bankura.
Matrimonial Suit No.36 of 2019 which is sought to be transferred at the instance of the wife/petitioner is filed at Barasat.
I have already recorded that two orders of alimony pendente lite and maintenance allowance respectively were passed by two Courts of competent jurisdiction. The opposite party has not come up with even a single scrap of paper to show that he is paying either alimony or maintenance to the wife/petitioner. It is needless to say that a lady having no source of income will face financial inconvenience if she is compelled to travel a distance of about 436 kilometers in both ways to contest a suit for divorce. On the point of convenience of the wife the instant 6 application under Section 24 of the Code of Civil Procedure ought to be allowed.
I have already recorded that the opposite party /husband has been residing at South 24 Parganas. As per the averment of the opposite party the parties stayed together for the last time within the jurisdiction of South 24 Parganas. Marriage was solemnized at Bankura. The learned counsel for the opposite party failed to satisfy me as to how the learned District Judge, Barasat, North 24 Parganas assumes jurisdiction to entertain and try the suit.
When it is found that the Court of the learned District Judge, North 24 Parganas at Barasat lacks territorial jurisdiction to try the suit, I am of the considered that this Court has ample jurisdiction under Section 24 of the Code of Civil Procedure to pass an order to transfer the suit to a Court admittedly having territorial jurisdiction so that the lis between the parties may be saved. I am not in a position also to accept the submission made by the learned counsel for the opposite party that the suit may be transferred to any other Court in between Barasat and Bankura. The conduct of the opposite party shows that she filed a matrimonial suit at Bankura, represented the suit for a while till an order of 7 alimony pendente lite was passed by the learned Additional District Judge, 2nd Court at Bankura on 12th March, 2018. In order to avoid payment of alimony to the legally married wife the opposite party disappeared and got the suit dismissed either for default or for non-prosecution. Subsequently he filed Matrimonial Suit No.36 of 2019 at Barasat. The conduct of the opposite party is far from satisfactory and he did not approach the Court with clean hand.
On the contrary, the petitioner is a destitute lady. The record suggests that the opposite party has no regard even for the order of the Court to comply its direction and to pay maintenance /alimony to the petitioner.
Considering all aspects of the matter I am inclined to allow the instant revision. The application under Section 24 of the Code of Civil Procedure is allowed on contest, however, without cost.
Matrimonial Suit No.36 of 2019 now pending before the learned District Judge at Barasat (since transferred to the 3rd Court of the learned Additional District Judge at Barasat) be transferred to the Court of the learned District Judge, Bankura for trial and disposal.
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Office is directed to send copy of this order to both the learned District Judge at Barasat and the learned District Judge, Bankura for information and compliance of this order forthwith.
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.)