Palak Rakeshbhai Arora vs Rakeshbhai Vidhyasagar Arora

K.S. Jhaveri, J.—By way of Miscellaneous Civil Application No. 58 of 2011, the applicant-wife (hereinafter referred to as ''the applicant'') has inter alia prayed for transferring the proceedings of Family Suit No. 263 of 2010 pending before the Family Court at Rajkot to the competent Court at Ahmedabad; whereas the applicant-husband (hereinafter referred to as ''the opponent'') by way of filing Miscellaneous Civil Application No. 441 of 2011 has inter alia prayed for transferring the proceedings of Criminal Miscellaneous Application No. 187 of 2010 pending in the Family Court, Ahmedabad to the Family Court at Rajkot as well as to transfer the Divorce Suit No. 70 of 2011 pending before the Family Court at Ahmedabad to the Rajkot Family Court.

The facts of the case in brief are that the marriage of the applicant and the opponent was solemnized on 11th February 2008. Out of the said wedlock, the applicant and opponent have one daughter aged 2 years. Thereafter, on account of certain compelling circumstances, the applicant left opponent''s house at Rajkot and she has been staying with her parents at Ahmedabad since 04th September 2009. Thereafter, she filed an application for maintenance u/s 125 of the Code of Criminal Procedure, 1973 being Criminal Miscellaneous Application No. 187 of 2010 on 15th January 2010 before the Family Court at Ahmedabad. Thereafter, the opponent herein filed Family Suit No. 263 of 2010 before Family Court at Rajkot. Hence, both these applications for transfer of respective cases.

Mr. Raju Kothari, learned advocate for the applicant, has submitted that the applicant-wife has been residing along with her parents at Ahmedabad; that the distance of Rajkot from Ahmedabad is about 225 kms. and it would be too difficult for the applicant to attend the Court proceedings at Rajkot and for attending the same, she will have to travel in wee hours along with her minor daughter aged 2 years; that the applicant has no source of livelihood and she has been staying with her parents at Ahmedabad; that the litigation filed by the applicant for maintenance being Criminal Miscellaneous Application No. 187 of 2010 is pending in the Court at Ahmedabad; that it would not be possible for the applicant to travel to a distance of about 225 kms. at every adjournment and that she is not in a position to attend the Court proceedings at Ahmedabad even looking to the expenses to be incurred by her. In view of aforesaid submissions, it is prayed that the said proceedings may be transferred to the competent Court at Ahmedabad.

Mr. Chinmay Gandhi, learned advocate for the opponent-husband, has relied upon the affidavit-in-reply and submitted that the opponent is entitled to get legal benefit of machinery provided under the Family Courts Act; that by transferring the said proceedings the opponent will not only be denied the equality before law but also the equal protection of laws and that the opponent too will suffer great hardships. Mr. Gandhi has also pointed out the incident which took place at the residence of the applicant herein. Mr. Gandhi has submitted that the marriage had taken place at Rajkot and the parties resided together lastly at Rajkot. In view of aforesaid submissions, it is prayed that present application may be rejected and the application made by the applicant for transfer of case may be allowed.

Having considered the rival contentions raised by the learned advocates for the respective parties, averments made in both the applications as well as the documentary evidence produced on record, it transpires that the applicant-wife has been residing with her parents at Ahmedabad. Further, the applicant herself has initiated the proceedings of maintenance, which are pending before the competent Court at Ahmedabad. It is required to be noted that the distance of Rajkot from Ahmedabad cannot be overlooked since it is about 225 kms. In that view of the matter, the applicant being a lady residing with her parents at Ahmedabad, it would be too difficult for her to attend the Court proceedings at Rajkot. Further, it would not be possible for the applicant to travel to a distance of about 225 kms. at every adjournment along with her minor daughter aged 2 years. It also transpires that the applicant cannot attend the Court proceedings at Rajkot even looking to the expenses to be incurred by her. An endeavour is made by the learned advocate for the opponent-husband by drawing attention of the Court to the incident which took place at the residence of the applicant. However, the same is nothing but a reaction of an action. In that view of the matter, it would be in the fitness of things to transfer the said proceedings to the Family Court at Ahmedabad.

In view of aforesaid, present application is hereby allowed. The proceedings of Family Suit No. 263 of 2010 filed by the opponent herein pending before the Family Court at Rajkot, are hereby transferred to the Family Court at Ahmedabad. Rule is made absolute to the aforesaid extent so far as the application filed by applicant-wife is concerned. No order as to costs. Consequently, the application filed by opponent-husband fails and is rejected accordingly.

It is hereby clarified that if the opponent herein makes an application to the competent Court for giving him accommodation on a particular date, he may be provided the same in pursuance of pendency of maintenance application and all the proceedings may be kept on the same day for convenience.

Direct Service is permitted.