Gujarat High Court
Mahjaben Alias Teena W/O Tanvirsab ... vs Dayma Tanvirsab ... on 27 March, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/MCA/2835/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR TRANSFER) NO. 2835 of 2013
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MAHJABEN ALIAS TEENA W/O TANVIRSAB NOORMOHAMMAD D/O
CHAUHAN NISAR MOHAMMID IBRAHIM....Applicant(s)
Versus
DAYMA TANVIRSAB NOORMOHAMMAD....Opponent(s)
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Appearance:
MR MP SHAH, ADVOCATE for the Applicant
MS. KRUTI M SHAH, ADVOCATE for the Applicant
MS DARSHANA S PANDIT, ADVOCATE for the Respondent
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 27/03/2014
ORAL ORDER
1. Leave to amend the prayer clause.
2. Rule. Ms. Darshana Pandit, learned advocate waives service of notice of rule on behalf of the respondent.
3. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
4. By this application under section 24 of the Code of Civil Procedure, 1908, the applicant seeks transfer of Family Suit No.167 of 2013 pending in the Family Court, Vadodara to the competent court at Surat.
Page 1 of 5 C/MCA/2835/2013 ORDER5. The applicant and the respondent are husband and wife. The marriage between the applicant and the respondent was solemnized thirteen years ago. Thereafter, on account of differences between the parties, the applicant left her matrimonial home along with two minor children in the year 2010 and since then is residing with her parents at Surat. The respondent - husband has filed a suit for restitution of conjugal rights under section 29 of the Mohammedan Law in the Court of the learned Judge, Family Court, Vadodara. The applicant, who resides at Surat, therefore, seeks transfer of the said proceedings to Vadodara for the reasons stated in the memorandum of application.
6. Having regard to the fact that this was a matrimonial matter and it would be in the interests of both the parties if the matter could be amicably resolved, on an earlier occasion, this court had called both the parties personally and had talked to them in the chamber with a view to ascertain as to whether there was any possibility of conciliation between them. However, after talking with the parties, it appears to the court that it may not be possible to arrive at any conciliation at this stage.
7. Ms. Siddhi Joshi, learned advocate for Ms. Kruti Shah, learned advocate for the applicant submitted that the applicant is a lady and has two minor children and is residing with her parents at Surat. Since she is required to maintain and take care of her two children, it is not possible for her to attend the proceedings of the suit filed by the respondent in the Family Court at Vadodara. It was further submitted that the applicant has a serious apprehension regarding injury to her Page 2 of 5 C/MCA/2835/2013 ORDER life and limbs if she goes to Vadodara alone because her in- laws reside there and she does not have any relative who can accompany her on every date of hearing at the said court. It was submitted that the parents of the applicant are old aged and her father has suffered from an attack of paralysis and is not able to move about. Since both her parents are not keeping well, she is required to remain present at home to take care of them. In these circumstances, in the interest of justice, the matter is required to be transferred to the concerned court at Surat.
8. Vehemently opposing the application, Ms. Darshana Pandit, learned advocate for the respondent - husband submitted that the respondent has no difficulty in maintaining the applicant and his daughters and is and was always ready and willing to support and take care of them. However, it was the applicant, who, for no rhyme or reason, left the respondent and started residing at Surat with her parents. Under the circumstances, she is not entitled to any sympathy and the application for transfer deserves to be rejected. It was submitted that the concerns voiced by the applicant regarding danger to life and limb are also without any basis and therefore, also there is no warrant for interference by this court.
9. This court has considered the submissions advanced by the learned counsel for the respective parties and has perused the record as available before it.
10. As noted hereinabove, the applicant is residing at Surat with two minor children, whereas the respondent is residing at Page 3 of 5 C/MCA/2835/2013 ORDER Vadodara. The proceedings of the family suit have been instituted at Vadodara which is at a distance of about 180 kilometres from Surat. The applicant, therefore, would be required to commute approximately six hours in a day, if she is required to attend the court proceedings at Vadodara and return on the same day. Since she has to take care of two minor children, needless to state that she would either have to take two children along with her or would have to leave them with her parents who are old aged and infirm. As noticed earlier, the applicant's father has suffered from an attack of paralysis and is bed-ridden and her mother is also not keeping good health. In these circumstances, it is apparent that the applicant cannot expect her parents to look after the minor children while she attends the court proceedings at Vadodara. Moreover, looking to the distance between Vadodara and Surat and the fact that it may not be possible for the applicant to return back on the same day in which case, she would have to stay overnight, it cannot be gainsaid that the same would cause undue difficulties to the applicant.
11. At this juncture, reference may be made to the decision of the Supreme Court in the case of Sumita Singh v. Kumar Sanjay and another, AIR 2002 SC 396, wherein the court has observed that in the husband's suit against the wife, it is the wife's convenience that must be looked into. The court found the said circumstance to be sufficient to make the transfer petition absolute. In the facts of the present case, undisputedly, the suit has been instituted by the husband. The applicant - wife is required to face a lot of inconvenience in case she is required to attend the proceedings at Vadodara. In the light of the above decision of the Supreme Court, it is the Page 4 of 5 C/MCA/2835/2013 ORDER convenience of the wife that must be looked into. The proceedings of the family suit instituted by the respondent are, therefore, required to be transferred from Vadodara to Surat, in the interest of justice.
12. For the foregoing reasons, the application succeeds and is, accordingly, allowed. Family Suit No.167 of 2013 pending in the Family Court, Vadodara shall stand transferred to the Family Court at Surat. Rule is made absolute accordingly with no order as to costs.
(HARSHA DEVANI, J.) parmar* Page 5 of 5