Calcutta High Court (Appellete Side)
Smt. Sukla Mondal vs Sri Pratik Mondal on 28 July, 2022
28-07-2022 Item no.101 IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Subrata CO. No.1680 of 2022 Smt. Sukla Mondal
-vs-
Sri Pratik Mondal Mr. Mrityunjoy Chatterjee Md. G.N. Imrohi Mr. Debopriya Mazumder Mr. Pradyut Hazra ...for the petitioner Affidavit of service filed in court be taken on record.
It appears from the affidavit of service that notice has duly been served upon the opposite party as well as learned counsel who represents the opposite party before the learned court below. Despite notice, there is no representation on behalf of him. Hence the revisional application is taken up for hearing in absence of the opposite party.
The petitioner in this revisional application under section 24 of the Code of Civil Procedure, 1908 is seeking transfer of a matrimonial suit filed by the opposite party from the court of learned District Judge, North 24 Parganas at Barasat to the court of learned District Judge, Howrah.
The petitioner states that her marriage with the opposite party was solemnized on May 22, 2011 under the provisions of the Special Marriage Act, 1954. The marriage between them was consummated; and out of their wedlock, a female child was born on December 2, 2012.
The petitioner complains that the opposite party subjected her to cruelty, both physically and mentally by various ways. Unable to bear with the immense torture inflicted on her, she had to leave her matrimonial home and started residing at her parental home at No.18, Rajkishore Lane, P.O. Botanical Garden, Howrah. In order to sustain livelihood of her child and herself, the petitioner preferred a maintenance case under s.125 2 CrPC being Misc. Case No.23 of 2015 in the court of learned Chief Judicial Magistrate, Howrah. The opposite party by filing written objection against the maintenance case is contesting the proceeding.
After getting summons, the petitioner came to know that the opposite party brought a matrimonial suit being No.591 of 2018 against her in the court of learned District Judge, North 24 Parganas at Barasat under section 27(1) of the Special Marriage Act, 1954 seeking dissolution of marriage.
The petitioner states that her child is too minor and it will be hardship for her to appear before the learned District Judge at Barasat to attend the matrimonial proceeding. Hence this prayer.
Learned counsel appearing for he petitioner submits that the maintenance case brought by the petitioner is pending in the court of learned Chief Judicial Magistrate at Howrah and the opposite party is contesting the maintenance proceeding at Howrah. Learned counsel submits that it will be inconvenient for the petitioner to appear before the court at Barasat by travelling a long distance keeping her minor child at her parental home. On such score, learned counsel submits that the matrimonial suit may be transferred.
Since the opposite party has chosen not to contest the revisional application, it will be presumed that the averments/allegations made in the application remain uncontroverted.
What I find from the uncontroverted averments in the s.24 CPC application and the materials on record, one maintenance case preferred by the petitioner is pending in the court of learned Chief Judicial Magistrate, Howrah. It denotes that the opposite party has to appear before the concerned court at Howrah to contest the maintenance proceeding. As the averments indicate, the child of the petitioner is minor. These indicate that the petitioner will face immense hardship, if she is to appear before the court at Barasat travelling from her parental 3 home.
In a catena of decisions, the Hon'ble Supreme Court as well as this court has held that inconvenience of the wife should be of paramount consideration while disposing of an application under section 24 of the Code.
In view of the above, the revisional application is allowed by the following order.
Let the matrimonial suit being No.591 of 2018 be withdrawn from the court of learned District Judge, North 24 Parganas at Barasat, and the suit be transferred to the court of learned District Judge, Howrah for disposal.
The learned District Judge, Howrah may either dispose of the suit himself or transfer it to any of the competent courts of the learned Additional District Judge, Howrah for disposal.
The learned District Judge, North 24 Parganas at Barasat is directed to transmit the case record of the aforementioned matrimonial suit to the transferee court immediately after receipt of a copy of this order.
The department is directed to communicate a copy of this order to both the learned courts below forthwith.
With the above, CO No.1680 of 2022 stands disposed of. No order as to costs.
[Rabindranath Samanta, J] 4