Rimpa Datta (Sarkar) vs XXX

Bibek Chaudhury, J

The petitioner has prayed for transfer of Matrimonial Suit No. 2627 of 2018 now pending before the learned Additional District Judge, 6th Court at Alipore to the Court of the learned District Judge, Purba Medinipur.

It reveals from the application under Section 24 of the Code of Civil Procedure that marriage of the parties was registered under the Special Marriage Act on 29th April, 2018. Both the petitioner and the opposite party led conjugal life together till 19th August, 2018 when she was compelled to leave her matrimonial home after being tortured physically and mentally. The petitioner again went to her matrimonial home on 11th September, 2018 but she was not allowed by her parents-in-law to enter into the house and was further assaulted which prompted the petitioner to lodge a complaint against the opposite party and other matrimonial relations on 18th September, 2018. The petitioner lodged an F.I.R. on 2nd November, 2018 against her husband and other matrimonial relations under Section 498A/406/34 of the Indian Penal Code on the basis of which Burdwan Police Station Case No. 713 of 2018 dated 2nd November, 2018 was registered. On 12th November, 2018, the petitioner initiated a proceeding under various provisions of the Protection of Women from Domestic Violence Act, 2005. The opposite party entered appearance in those proceedings pending at Burdwan.

The petitioner has prayed for transfer of the said matrimonial suit from Alipore to Burdwan on the grounds that except the father of the petitioner there is no other person to accompany her to Alipore. The father of the petitioner is an aged person and the petitioner has no source of income. Distance between Burdwan and Alipore Court is about 107 K.M. and the petitioner will face practical difficulty to travel the said distance. Thirdly, the petitioner has no accommodation at Kolkata and it will not be possible for her to return Burdwan after attending Court at Alipore on the dates of trial. The petitioner is a member of weaker section of the society and, therefore, she deserves a favourable order from the Court and finally due to inconvenience on the part of the petitioner the said matrimonial suit ought to be transferred from Alipore to Burdwan.

Learned Advocate for the petitioner has canvassed the aforesaid grounds in support of the prayer of the petitioner. He further submits that the petitioner has no source of income and she is entirely dependent on her father. Therefore, she should not be further burdened with financial implication by compelling her to attend the Court at Alipore to contest the said matrimonial suit.

Learned Counsel for the opposite party, on the other hand, submits that the petitioner has made out mainly a case of inconvenience on her part in support of her prayer for transfer of the said matrimonial suit. However, solitary reason of inconvenience cannot be regarded as a ground for transfer of a matrimonial suit. In support of his contention, learned Counsel for the opposite party refers to an unreported decision of a Co-ordinate Bench of this Court delivered on 4th July, 2019 in C.O. No. 622 of 2019 with C.O.No. 1094 of 2019 (Dipika Agarwal @ Dipika Khaitan -Vs.- Rishi Agarwal).

It is further submitted by the learned Counsel of the opposite party that the opposite party instituted the said matrimonial suit on 13th September, 2018. On the other hand, complaint under Section 498A of the Indian Penal Code was lodged by the petitioner on 2nd November, 2018. On 12th November, 2018, she instituted a case under various provisions of Protection of Women from the Domestic Violence Act. Therefore, all those proceedings are in the nature of counter-blast against the opposite party's suit for dissolution of marriage by a decree of divorce.

It is further argued by the learned Counsel for the opposite party that he reasonably apprehends that he is not safe at Burdwan because of the fact that the father and elder brother of the petitioner came to the house of the opposite party at Kolkata and physically assaulted him. The opposite party was compelled to file a complaint before the learned Chief Judicial Magistrate, Alipore against the father and brother of the petitioner. If he is assaulted in Kolkata, there is every possibility that he may be severely and brutally treated at Burdwan.

In reply to such submission, learned Advocate for the petitioner submits that apprehension cannot be a ground for rejecting the prayer of the petitioner for transfer of a suit. If any such incident takes place the opposite party is at liberty to seek police help to protect himself. In Soma Choudhury -Vs.-Gourab Choudhury, reported in (2004) 13 SCC 462, the respondent took the similar plea of apprehension of assault at Alipore but the Hon'ble Supreme Court refused to entertain such plea taken by the respondent and allowed the transfer petition filed by the petitioner. The principle laid down in Soma Choudury (Supra) is squarely applicable in the instant case.

It is also pointed out by the learned Counsel for the petitioner that the opposite party lodged a false complaint against the father and brother of the petitioner which adds further insult to her. This should be treated as an additional ground for favouring the petitioner with an order allowing the prayer for transfer of matrimonial suit.

The position is well settled that in a proceeding under Section 24 of the C.P.C. arising out of a matrimonial suit for transfer of the suit from one Court to another, convenience of the wife is prime consideration of the Court. However, only inconvenience pleaded by the petitioner apart from other relevant facts and circumstances is not enough to consider a transfer petition in favour of the petitioner. In this regard, I am in full agreement with the observation and decision made by a Co-ordinate Bench of this Court in an unreported Judgement dated 4th July, 2019 in C.O. No. 622 of 2019. In the instant case, the petitioner has pleaded inconvenience to attend the 6th Court of the learned Additional District Judge at Alipore from Purba Burdwan on the ground that she alone cannot travel a distance of about 107 K.Ms. from Burdwan to Alipore. Secondly, father of the petitioner is ill and thirdly, she has filed other proceedings under Indian Penal Code and P.W.D.V. Act against the opposite party at Burdwan. Jurisdiction of Alipore Court to try Matrimonial Suit No. 2627 of 2018 is not disputed. The opposite party is apprehensive that he may be harassed and even physically assaulted by the father and brother and other associates of the petitioner if he is compelled to attend Burdwan Court to contest the suit, because it is alleged by the opposite party that he was previously assaulted by them and also on one occasion his driver was wrongfully confined by the family members of the petitioner at Burdwan.

I have carefully considered the decision of the Hon'ble Supreme Court in the case of Soma Chaudhury (Supra). In the said reported decision, the Hon'ble Supreme Court was pleased to transfer a matrimonial suit from Tripura to Alipore in West Bengal taking into consideration that if the matrimonial suit is allowed to be proceeded with in Tripura, the petitioner would have to travel a distance of about 1800 K.Ms. Apprehension of the husband/opposite party that he might be assaulted in West Bengal by the petitioner and her family members was taken care of by the Hon'ble Supreme Court giving him the liberty to seek for police help.

In the instant case except solitary plea of inconvenience, the petitioner has not raised any ground in support of her prayer to transfer the matrimonial suit from Alipore to Burdwan. Admittedly, the distance of Burdwan and Alipore is 107 K.Ms. Therefore, I am of the considered view that no inconvenience will be caused to the petitioner if she is sufficiently compensated by the opposite party for her travel from Burdwan to Alipore and back. I am not unmindful also to note that conveyance by Rail and through Road between Burdwan and Kolkata is more than satisfactory and anybody can reach either by Rail or through Road within three hours. Therefore, the petitioner does not need to stay in Kolkata to contest the matrimonial suit.

For the reasons stated above, the instant revision is dismissed on contest on condition that the opposite party shall bear the cost of conveyance and other incidental expenses of the petitioner and another person who will accompany her on the dates of hearing of the said matrimonial suit. Such conveyance cost and other incidental cost for two persons is assessed at Rs.1,000/- per day.

The opposite party is directed to pay such amount of Rs.1,000/- to the petitioner on each date of hearing of the suit when she will be present in Court towards her transportation and other incidental cost.

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