Calcutta High Court (Appellete Side)
Pooja Ladha Mukherjee vs Krishnendu Mukherjee on 26 August, 2015
1 203. 26.08.2015
mb In the High Court At Calcutta Civil Revisional Jurisdiction Appellate Side C.O. 3416 of 2014 Pooja Ladha Mukherjee
-Vs.-
Krishnendu Mukherjee Mr. Vineet Kothari ......for the petitioner Mr. Purnasish Gupta, Mr. Promade Ranjan ......for the Opposite Party In this application under Section 24 of the Code of Civil Procedure the petitioner wife has prayed for transfer of the Matrimonial Suit No. 367 of 2014 filed by the opposite party husband and pending before the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol, Burdwan, to the Court of the learned District and Sessions Judge at Howrah.
The grounds on which the petitioner wife has prayed for transfer of the matrimonial suit from the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol to the Court of the learned District and Sessions Judge at Howrah are that after being compelled to leave the matrimonial home, she is presently 2 residing with her parents at Howrah; she has no fixed source of income and she is not receiving any maintenance from the opposite party husband. She filed an application under Section 125 of the Code of Criminal Procedure, 1973 against the opposite party husband before the Court of the learned Chief Judicial Magistrate, Howrah and the opposite party is contesting the said proceeding before the Court of the learned Chief Judicial Magistrate, Howrah without any difficulty. Furthermore, the distance between Howrah and Asansol is about 215 kilometers on each side and it would be extremely difficult for her to contest the matrimonial suit before the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol. For the purpose of attending the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol, she has to leave her residence in the wee hour of the day and she will not be in a position to come back to her residence at Howrah on the same day after attending the court proceeding before the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol. It is the further case of the petitioner that she was constrained to file an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Court of the learned Judicial Magistrate (1st Class), Municipal Court at Howrah and in spite of an order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah directing the opposite party husband to pay 3 Rs.3,500/- per month to the petitioner, the opposite party has not complied with the said order.
Apart from various allegations against the petitioner wife, which has no bearing in the instant transfer application, the opposite party husband in his affidavit-in-opposition has submitted that he has undergone a by pass surgery and he will face difficulty if the said matrimonial suit is transferred to the Court of the leaned District and Sessions Judge, Howrah as has been prayed for by the petitioner.
On June 17, 2015 when this application was taken up for hearing, Mr. Gupta appearing for the opposite party husband sought for an accommodation to enable him to take instruction from the opposite party husband whether he is paying maintenance to the petitioner wife in terms of the order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah in an application filed by the petitioner wife under Section 12 of the Protection of Women from Domestic Violence Act, 2005. On April 28, 2015, the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah while disposing of the application filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005, directed the opposite party husband to pay Rs.3,500/- per month to the petitioner wife. On June 17, 2015 when this application was taken up for hearing, Mr. Kothari strenuously urged that the opposite party husband has not complied with the order dated April 4 28, 2015 passed by the leaned Judicial Magistrate, (1st Class), Municipal Court at Howrah and, as such, hearing of this application was adjourned on the prayer of Mr. Gupta to enable him to take instruction from the opposite party husband whether he is paying maintenance to the petitioner wife in terms of the order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah in an application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
Today, when this application is taken up for hearing, Mr. Gupta submitted that he has taken instruction with regard to the query of this Court on June 17, 2015 whether the opposite party husband is paying any maintenance to the petitioner and he has received the instruction from the opposite party husband that he has been regularly paying the maintenance amount as directed by the order passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah in the said application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. In support of his submission Mr. Gupta produced before this Court certain receipts issued by the Judicial Cashier, Howrah wherefrom it appears that on two occasions, that is, on June 23, 2015 and on August 25, 2015, the opposite party husband has deposited Rs.5,000/- and Rs.7,000/- respectively to the Judicial Cashier at Howrah. Let the photostat copy of the said receipts be kept with the record.
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However, Mr. Khotari appearing for the petitioner filed a supplementary affidavit affirmed by the petitioner and submitted that the petitioner wife has received no money from the opposite party husband in terms of the order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah in the application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Let the said supplementary affidavit filed by the petitioner be kept with the record.
Faced with this submission of Mr. Kothari, Mr. Gupta strenuously urged that since the petitioner and her advocate-on- record refused to accept the money offered by the opposite party husband in terms of the order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah in the application filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the opposite party husband constrained to deposit the said sum of Rs.5,000/- and Rs.7,000/- with the Judicial Cashier at Howrah. He, however, could not produce any documentary evidence in support of his contention that any money was tendered either to the petitioner or to her advocate-on-record in terms of the order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah.
From the said receipts produced by Mr. Gupta it is further evident that as on June 17, 2015, when this application was taken up 6 for hearing by this Court, the opposite party husband had not complied with the said order dated April 28, 2015 passed by the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah and it was only on June 23, 2015, the opposite party husband first deposited the amount of Rs.5,000/- with the Judicial Cashier at Howrah. This conduct of the opposite party husband depositing the said sum of Rs.5,000/- and Rs.7,000/- with the Judicial Cashier, Howrah after adjournment of hearing of this application on June 17, 2015 and without any proof that the petitioner or her advocate-on- record refused to accept either the said sum of Rs.5,000/- or Rs.7,000/- from him, cannot be accepted to be bona fide.
In the instant case it appears that the opposite party has all along contested the said application filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Court of the learned Judicial Magistrate, (1st Class), Municipal Court at Howrah. He is also contesting the proceeding under Section 125 of the Code of Criminal Procedure, 1973 pending before the Court of the learned Judicial Magistrate, Howrah without any difficulty.
Accordingly, it is difficult for this Court to accept the ground of objection raised by the opposite party husband that since he has undergone a by pass surgery in the year 2013, there will be inconvenience on his part to contest the matrimonial suit if the same 7 is transferred to the appropriate court in the district of Howrah as prayed for by the petitioner.
In the instant case, the petitioner has already substantiated the difficulties she will face to contest the said matrimonial suit before the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol, which could not be disputed by the opposite party husband in his affidavit-in-opposition.
For all the foregoing reasons, I am satisfied that the petitioner wife has substantiated her grounds for transfer of the matrimonial suit No. 367 of 2014 from the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol to the Court of the learned District and Sessions Judge, Howrah. Accordingly, the Matrimonial Suit No. 367 of 2014 [Krishnendu Mukherjee vs. Smt Pooja Mukherjee (Ladha)] is withdrawn from the Court of the learned Additional District and Sessions Judge, 3rd Court, Asansol and the same is transferred to the Court of the learned District and Sessions Judge, Howrah.
The learned District Judge, Burdwan is directed to forthwith transmit all the records of the Matrimonial Suit No. 367 of 2014 [Krishnendu Mukherjee vs. Smt Pooja Mukherjee (Ladha)] to the Court of the learned District and Sessions Judge, Howrah.
With the aforesaid directions, the revisional applications, being C.O. 3416 of 2014, stands disposed of.
There shall, however, be no order as to costs.
8Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of requisite formalities.
(Ashis Kumar Chakraborty, J.)