Kuntala Ghosh vs Ashok Krishna Ghosh

Bibek Chaudhuri, J

Affidavit of service filed be kept with the record.

It is submitted that the Mat. Suit No. 176/2018 now pending before the Court of the learned District Judge, Chinsurah, Hooghly filed by the opposite party praying for dissolution of marriage by decree of divorce, is sought to be transferred to the Court of the learned Additional District Judge, Katwa, Purba Burdwan by invoking the provisions of Section 24 of the Code of Civil Procedure.

At the outset, I like to record that as directed by this court, notice of the instant proceeding was sent to the opposite party, it is ascertained from the affidavit of service that the opposite party duly received the notice but he has not turned up. Therefore, I have no other alternative but to take up hearing of the instant matter in presence of the learned counsel appearing on behalf of the petitioner.

It is submitted that transfer of the Mat. Suit No. 176/2018 is sought for by the petitioner/wife on the following grounds:

i) Distance between Katwa and Chinsurah is about 120 kms. in one way. The petitioner will have to travel approximately 240/250 kms. in both the ways if she is directed to contest the said suit at Chinsurah, Hooghly;

ii) Except her old ailing father, there is no other person to accompany her from Katwa to Chinsurah, it will not only cause hardship to her but also to her father;

iii) The petitioner was driven out from her matrimonial home sometime in the month of March, 2018, she took her shelter at her paternal home at katwa. She initiated a proceeding under Section 125 of the Code of Criminal Procedure claiming maintenance allowance for herself against her husband. A Criminal case under Section 498A of the Indian Penal Code and other cognate penal provisions is also pending at Katwa Court against the opposite party/husband and other matrimonial relations of the petitioner;

iv) The petitioner appeared before the learned District Judge, Chinsurah, Hooghly in Mat. Suit No. 176/2018 on 15.09.2018 but in the afternoon, she was threatened by her husband and some unknown persons of dire consequences, if she wants to contest the said suit.

So is the application for transfer of the said Matrimonial Suit.

Mr. Avik Ghatak, the learned counsel appearing on behalf of the petitioner placed reliance on the following judgments in support of his contention in the case of Mandeep Kaur vs. Kamaljeet Singh reported in (2004) 13 SCC 592 and Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi reported in (2005) 12 SCC 237 and submitted that inconvenience of the petitioner in carrying out a matrimonial proceeding is the prime consideration while adjudicating an application under Section 24 of the Code of Civil Procedure and the convenience of the wife is to be preferred over the convenience of the husband.

It is urged by Mr. Ghatak that the petitioner has no source of income. Her application for maintenance allowance has not yet been disposed of. The opposite party has failed and neglected to pay any amount towards subsistence allowance of the petitioner. Considering the financial background of the petitioner, the said matrimonial suit ought to be transferred to Katwa where the petitioner resides.

Mr. Ghatak also refers to another decision of Karnataka High Court in the case of C. S. Shyamala vs. C. S. Srikantaiah reported in AIR 1990 Kar 146. In the said decision, a matrimonial suit was transferred to a place situated at a distance of about 69 kms. away taking into consideration the factual background of human misery and lack of economic independence of the petitioner.

It is also submitted by the petitioner that a litigant cannot freely conduct his/her case if he/she is threatened by his/her adversary.

In the instant case, the petitioner had to lodge a G.D. because she was harassed and threatened with dire consequences if she attempted to contest the said Mat. Suit No. 176/2018 at Chinsurah, Hooghly where the suit is now pending. In view of the threat perception clearly pleaded by the petitioner, the said Matrimonial suit ought to be transferred from Chinsurah to Katwa.

The opposite party husband has not come forward to contest the instant application by refuting factual statement made by the petitioner. Since the facts are not denied by the opposite party, this court has no predicament to consider such factual background made by the petitioner on affidavit.

The petitioner has been residing at Katwa at her paternal home. She has no source of income. She is now solely dependent upon her old parents. Considering her economic background, distance of Chinsurah Court from her present place of residence at Katwa, pendency of two criminal proceedings at Katwa Court and specific allegation of threat given to her by the opposite party when she went to Chinsurah to contest the said suit, I am of the view that the instant application deserves favourable consideration.

Accordingly, the said Mat. Suit No. 176/2018 pending before the learned District Judge, Chinsurah, Hooghly be transferred to the court of learned Additional District Judge, Katwa for trial and disposal.

For the reasons stated hereinabove, the instant revisional application under Section 24 of the Code of Civil Procedure is disposed of.

A copy of this order be sent to the learned District Judge, Chinsurah, Hooghly and the learned Additional District Judge, Katwa for information and compliance with regard to transfer of the said matrimonial suit through the Department forthwith.

There will be no order as to costs.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.