Pragati Goutam (Smt.) vs Sunil Goutam

U.C. Maheshwari, J.

The applicant-wife has preferred this petition u/s 24 of the CPC for transferring R.C.S. No. 399/07 filed by the respondent u/s 13(1) of the Hindu Marriage Act 1955 from the Court of Principle Judge of Family Court, Bhopal to the Family Court, Betul.

As per averments of the petition, the applicant got married with the respondent on dated 25.06.2002 in accordance with rites and rituals of the Hindu Community. Out of such wedlock they have been blessed with a male child who is now four years old residing with the applicant. Subsequent to birth of the child, on arising the matrimonial dispute between them, the respondent filed the aforesaid petition for divorce in the family court at Bhopal. As per further averments the applicant under compulsion is residing in her parental family at Betul. She did not have any source of earning for her livelihood and also to maintain the said child. Such child being four years of the age is suffering from the disease of mental retardation with Polio, as such he is handicapped. The father of the applicant has already expired and there is no other competent person available in her parental family who may accompany with her to travel for defending the case at Bhopal. Besides this no other competent person is available in her parental family to look after her aforesaid son in her absence. Bhopal is 200 k.m. far away from Betul. Thus, the applicant is not in a position to attend the every date of hearing at Bhopal. With these averments the aforesaid petition for transfer is preferred. The same is further supported by an affidavit of the applicant.

The reply of the petition has not been filed on behalf of the respondent but by filling an application for vacating stay, some documents and papers showing the health condition of the respondent are annexed with it. In such application till some extent the averments made by the applicant in the petition are challenged. It is also prayed that looking to the health condition of the respondent he is not in a position to go and prosecute the case at Betul.

By referring the facts stated in the petition the applicant''s counsel said that considering her difficulties and inconvenience this petition be allowed.

Counsel for the respondent stated that mere inconvenience of the applicant is not sufficient for transferring the case but the convenience of the respondent also requires some consideration on account of his health condition as stated in the interlocutory application filed for vacating the stay.

Having heard the counsel after perusing the averments of the petition as well as IA No. 8347/08 for vacating the stay and the annexed paper, I am of the view that this petition deserves to be allowed.

It is undisputed facts between the parties that out of their wedlock they have been blessed with a son who is at present four years of the age and residing with the applicant at Betul. From Annexure A/2 the certificate of the handicapped candidate, it appears that on the date of issuing such certificate dated 07.03.2002, said son being two years of the age was suffering 60% permanent disablement in his leg and as per averments of the petition supported by affidavit of the applicant he was also suffering with mental retardation. Such averments of the petition are not denied specifically by the respondent. It is also apparent that the applicant alongwith her son is residing at Betual with her mother. As per death certificate, Annexure A/3 the father of the applicant had died on 08.03.2006. In such premises, it could be assumed that in order to look after the aforesaid handicapped and mental retorted son except the applicant no other competent person is available in the family and she also did not have any male member in such family who may accompany with her to defend the case at Bhopal. Besides this it has been established that she did not have any source of earning.

Although as per available circumstances, it appears that the respondent is also suffering from some cardiac disease but it is settled proposition of law that in the matter of difficulties and inconvenience the woman requires more consideration in comparison of the man. Taking into consideration such proposition in the above mentioned circumstances considering the difficulties and inconvenience of the applicant, this petition deserves to be allowed.

Under the aforesaid premises by allowing this petition the aforesaid Original Civil Suit No. 399-A/07 pending in the Principle Family Court, Bhopal is hereby transferred to the Family Court, Betual or if such court is not functioning there, then to the Court of District Judge, Betul for its further trial and adjudication. However, considering the prayer of the respondent''s counsel the aforesaid court of Betul is directed to conclude the case expeditiously, probably within six months from the date of receiving the record of the case. Such direction is being given keeping in view the provision of Section 23 of the Hindu Marriage Act.

There shall be no order as to the cost. The parties are directed to remain present before the Family Court, Betual/or the Court of District Judge, Betul as the case may be on dated 01.09.2008, to assist the court for adjudication of the case, meanwhile the Family Court, Bhopal is directed to send the record immediately to such court.

The petition is allowed as indicated above

CC as per rules