Payel Biswas vs Soumitra Biswas

Subhasis Dasgupta, J

This is an application under Section 24 of the Code of Civil Procedure praying for transfer of a Matrimonial Suit No.251 of 2018 under Section 9 of the Hindu Marriage Act praying for restitution of conjugal right, now pending in the Court of Learned District and Sessions Judge, Krishnagar, Nadia to any court having competent jurisdiction at Murshidabad to try and dispose of the said matrimonial proceeding.

Learned advocate for the petitioner/wife submits that wife is not agreeable to take part in the mediation and as such it would be a waistage of time to keep the case adjourned for the mediation to take place between the parties.

Admittedly, petitioner is a legally married wife of opposite party/husband, the marriage having been solemnized on 26th November, 2009 according to Hindu Customs and Rites. A male child was born to them out of their wedlock, who is now 7 years old. The opposite party/husband is described to be a businessman having income of Rs.40,000/- per month.

It is stated in the petition for transfer that few days after marriage the opposite party/husband started inflicting torture upon wife/petitioner both physically and mentally declining her to visit her neighbours house and thus put up in a state of confinement causing petitioner to face intolerable extent of torture, oppression and ill-treatment in the hands of her husband. The petitioner has been described to be a patient of Psychiatrist to her utter humiliation. Ultimately, the petitioner/wife has been deserted by her husband. The wife is now at the mercy of her parents and now residing at Murshidabad, which is 110 Km. Away from Krishnagar consuming a juourney of more than 1 and ½ hours by train.

It is also alleged that the father of the petitioner is now old man and there is none to accompany the petitioner for causing attendance to the pending matrimonial suit at Krishnagar.

Taking such grounds, petitioner has sought for transfer of this case projecting her personal inconvenience, sufferings and absence of sufficient money, needed for undertaking the journey to Krishnagar for the purpose of attending there on the dates, to be fixed by the court below.

It is submitted by the learned advocate for the petitioner that in the petition praying for restitution of conjugal rights o.p./husband has described the petitioner to be a suffering from sedative dependence syndrome from her childhood and in view of such physical status of the petitioner, it would be most unsafe for the petitioner to undertake journey from her parental house to Krishnagar, situated at a distance of 110 K.m. away from her residence consuming a journey of more than 90 minutes and involving a lumpsum amount of expenses needed therefor.

It is further submitted by the learned advocate for the petitioner that since petitioner is at the mercy of her parents and since petitioner has no income of her own, she filed a petition under Section 125 Cr.P.C. praying for maintenance, which is still pending for decision regarding the interim maintenance.

It is also submitted unless the prayer for maintenance is granted, it would be very difficult for her to meet the financial expenses needed for undertaking such proposed journey in order to attend the case and put up her best available defence there.

Learned advocate for the opposite party controverting the submission raised by the petitioner submits that Barhampore Court is not far away from Krishnagar, where matrimonial suit for restitution of conjugal right is pending, and the o.p./husband is highly interested to take back his wife forgetting his matrimonial differences with his wife.

It is also submitted by the learned advocate for the opposite party that o.p./husband is a poor day labourer having no financial sufficiency, and as such he cannot be ordered to pay the expenses of the petitioner and her son for participating in the court proceedings at Krishnagar on the dates, fixed by the court below.

Learned advocate for the o.p./husband submits that the wife has already entered her appearance in the suit for restitution of conjugal rites now pending at Krishnagar, and that being the position the instant case should not be allowed to transfer for the sufferings and harassment likely to cause to petitioner.

The only point to be decided in this case is whether the proposed transfer is permissible or not.

It is conspicuously revealed from the copy of the application under Section 9 of the Hindu Marriage Act praying for restitution of conjugal right, wherein petitioner has been described to be a patient suffering from sedative dependence syndrome from her childhood. It is the definite case of the petitioner that being neglected and deserted by her husband she has now been residing in her parental house and now at the mercy of her parents. She has no income of her own to support herself and her child as well, who is 7 years old. The wife has also instituted a separate case under Section 125 Cr.P.C. for maintenance from her husband but prayer for interim maintenance has not yet been disposed of by the learned court below, which is stated to have been fixed in the month of January 2020. That being the position, the petitioner/wife is now not being provided with any amount of maintenance by her husband. There is substantial financial expenses involved necessary to undertake the journey from Berhampore being the parental house of petitioner to the court at Krishnagar, where the matrimonial suit for restitution of conjugal right is pending. There is no male member to accompany the petitioner/wife, who is said to be suffering from sedative dependence syndrome at the moment.

Upon consideration of the extent of physical sufferings of the petitioner compared to the case of o.p./husband, as made out, it would not be advisable to require the petitioner to take part in the pending proceeding at Krishnagar spending substantial money for the purpose, when admittedly she has no income of her own to support herself. In the given circumstances of the case, it would be quite unjust if the prayer for transfer is not accorded. The application for transfer deserves success being supported by the strong reasons.

The transfer application succeeds.

Learned District and Sessions Judge, Krishnagar, Nadia is directed to transfer the pending Matrimonial Suit No.251 of 2018 to the court of Learned District Judge, Berhampore at Murshidabad within a fortnight from the date of communication of this order after issuing notice to both the parties intimating the transfer of this case to the transferee court with a direction to appear on the date to be suitably fixed by the transferor court before the transferee court.

With this observation/direction, the revisional application beingC.O.845 of 2019 stands disposed of.

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