Pratik Ram Mandal vs Sushmita Sarkar Mandal

Bibek Chaudhuri, J

The opposite party/wife filed Matrimonial Suit No. 472 of 2018 against the husband/petitioner praying for dissolution of marriage by a decree of divorce and the said suit is pending before the Fast Track, 3rd Court of the learned Additional District Judge at Malda. The husband/petitioner has prayed for transferring the said suit from Malda to Balurghat to a Court of competent jurisdiction on the following grounds: -

(i) Both the petitioner and the opposite party are permanent residents of Dakshin Dinajpur within the jurisdiction of Balurghat Court.

(ii) The permanent residence of the opposite party is at Gopalganj which is situated at a distance of about 20 K.Ms. from Balurghat.

(iii) After marital discord, the opposite party lodged a complaint against the petitioner on the basis of which a criminal case under Section 498A of the Indian Penal Code along with other cognate penal provisions was instituted and the said criminal case is pending at Balurghat.

(iv) The opposite party is a teacher of a primary school. She sought for transfer to Malda about one year back and then instituted the above-numbered Matrimonial Suit at Malda. According to the petitioner, if the said Matrimonial Suit is transferred to Balurghat both parties will get opportunity to contest all legal proceedings arising between them from one Court. Therefore, the petitioner has prayed for transfer of the said Matrimonial Suit to the Court of the learned District Judge, Dakshin Dinajpur, Balurghat.

Though the opposite party has not filed any affidavit-in-opposition against the instant revisional application, it is submitted by the learned Counsel for the opposite party that the petitioner has been residing at Malda with her minor child. Admittedly, she is a primary School Teacher. There is no other person to look after the said child during the absence of the petitioner. Secondly, the Court of the learned District Judge, Malda has the territorial jurisdiction to hear out the suit filed by the opposite party against the petitioner. Thirdly, the petitioner is a Teacher of a High School at Balurghat. He will not suffer any inconvenience to attend Malda Court to contest the said suit. Therefore, the instant petition, according to the learned Counsel for the opposite party is misconceived and ought to be rejected.

Learned Counsel for the petitioner, in course of argument refers to a decision of the Hon'ble Supreme Court in the case of Tejalben -Vs.-Mihirbhai Bharatbhai Kothari, reported in (2016) 3 SCC 69. In the said report, the Hon'ble Supreme Court transferred a Matrimonial Suit from Rajkot to Jamnagar in the State of Gujarat on the ground that other proceedings between the parties were pending at Jamnagar. Learned Advocate for the petitioner also refers to another unreported decision of this Court in C.O. No. 916 of 2016 delivered by a Co-ordinate Bench in Re : Pradipta Chakraborty on 27th July, 2016 wherein Tejalben (Supra) was considered and followed and the Matrimonial Suit was transferred to a Court where other proceedings are pending. Thus, it is submitted on behalf of the petitioner that the Matrimonial Suit may be transferred to Balurghat for trial and disposal.

It is not disputed that the parties are permanent residents of Dakshin Dinajpur. Marriage was solemnized between the petitioner and the opposite party at a place within the jurisdiction of the Principal Civil Judge of the District of Dakshin Dinajpur. The parental home of the opposite party is situated about 20 K.Ms. away from Balurghat Court premises. It is pointed out by the learned Advocate for the petitioner that the petitioner sent notice of the instant proceeding to the address of the opposite party both at Balurghat and Malda. Notice was received in the address of her paternal home in Dakshin Dinajpur, but notice sent to her Malda address was returned with postal remark 'door locked'.

Considering such postal remark and receipt of notice by the opposite party at her Dakshin Dinajpur address, this Court may take presumption that the petitioner was available at her address in Dakshin Dinajpur at least on the date of service of notice to her. Indisputably, a criminal case under Section 498A of the Indian Penal Code instituted by the opposite party is pending at Balurghat. The petitioner filed an application under the Guardians and Wards Act praying for custody of her minor child at Balurghat wherefrom a statutory presumption can be drawn that on the date of filing of the said application under Guardians and Wards Act the petitioner along with the child used to reside within the jurisdiction of Dakshin Dinajpur.

Learned Advocate for the opposite party repeatedly submits to consider the complaints filed by the opposite party on 14th February, 2018 and 16th June, 2018 at Kumarganj Police Station and Balurghat Police Station, both under Dakshin Dinajpur making certain allegations against the petitioner and his family members to the effect that they tried to snatch away the minor child from the custody of the opposite party. Therefore, it will be very difficult for the opposite party to conduct the Matrimonial Suit at Balurghat.

It is already recorded in my order that the proceeding relating to custody of the minor child was filed at Balurghat and the said matter was disposed of. By an order of the Court of competent jurisdiction custody of the child was handed over to the petitioner. However, the said order was not complied with. On the other hand, the opposite party has filed an appeal before this Court challenging the order passed by the learned Trial Judge in the said proceeding under the Guardians and Wards Act. The child is still under the custody of mother. It is submitted by the learned Counsel for the petitioner that the opposite party has been directed to produce the child for the purpose of visitation by the father/petitioner herein.

In view of such circumstances, this Court is not satisfied that the opposite party will face inconvenience to proceed with her suit for dissolution of marriage at Balurghat. Moreover, she has also her paternal family members within the jurisdiction of Balurghat.

Considering all such circumstances and relying on the decision in Tejalben (Supra), I am inclined to allow the instant application under Section 24 of the Code of Civil Procedure. In view of the above discussion, the instant revision is allowed on contest, however, without costs.

Department is directed to send a copy of this order both to the learned Additional District Judge, 3rd Fast Track Court at Malda and the learned District Judge, at Balurghat, Dakshin Dinajpur for information and compliance.

Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.