Santoshi Parida vs Budhia Parida

S.K. Mishra, J

This transfer petition has been preferred by the Petitioner-Wife for transfer of proceeding in C.P. No.31 of 2022, pending in the Court of learned Judge, Family Court, Khordha, to the Court of learned Judge, Family Court, Nayagarh on the grounds detailed in the transfer petition.

So far as service of notice on the sole Opposite Party, Paragraph Nos.2 to 4 and 7 of order dated 05.02.2026, being relevant, are reproduced below:-

"2. It is revealed from record that pursuant to order dated 08.02.2023, though notice was issued to the sole Opposite Party, neither A.D nor unserved notice returned from the Opposite Party. Hence, in view of the provisions enshrined under sub-Rule 5 of Rule-9 under Order-5 of CPC, read with Section-27 of the General Clauses Act, 1897, service of notice on the Opposite Party is held to be sufficient.

That apart, since further proceeding in C.P. No.31 of 2022 has been stayed by this Court, the present Opposite Party being the Petitioner in C.P. No.31 of 2022, it can be well presumed that the Opposite Party is well aware about pendency of the present transfer petition and is intentionally avoiding to appear in this case.

However, to give further opportunity to the Opposite Party, Office is directed to communicate a copy of this order to the learned Judge, Family Court, Khordha, who shall do well to communicate the same to the present Opposite Party, who is the Petitioner in C.P. No.31 of 2022 or his Counsel, who represents him in the said proceeding, and report compliance before the next date of listing.

It is made clear that if the Opposite Party goes unrepresented on the adjourned date, the transfer petition shall be taken up for hearing and disposal in accordance. with law."

Pursuant to order dated 05.02.2026, the said order being communicated to the learned Court below for compliance, it has been reported vide letter no.141 dated 20.02.2026 by the learned Judge, Family Court, Khordha that a copy of the said order dated 05.02.2026 has been duly sent to the Opposite Party, who is the Petitioner in C.P. No.31 of 2022 through Speed Post with A.D. vide office letter no.130 dated 18.02.2026 .That apart, the said order has also been duly served on learned Counsel for the Opposite Party. However, when the matter is called, the Opposite Party goes unrepresented.

As the transfer petition is pending since 2022, the matter is taken up for hearing and disposal at the stage of admission in absence of the sole Opposite Party.

Heard learned Counsel for the Petitioner.

Reiterating the grounds urged in the transfer petition, learned Counsel for the Petitioner-Wife submits that the Petitioner-Wife, along with her two minor daughters, namely Subhalaxmi Parida and Sonakshi Parida, has been deserted by the Opposite Party-Husband. After their desertion they are staying at the parental house of the Opposite Party-Husband. The Opposite Party has illicit relationship with one Gayatri Naik D/o- Duryodhan Naik of Adibashisahi (Mathurapur), Bolagarh and to marry her, he has left his paternal house deserting the Petitioner-Wife so also his two minor daughters, who were around 10 years and 7 years olds respectively, at the time of preferring the present transfer petition.

He further submits, the Petitioner so also her minor daughters have preferred an application under Section-125 Cr.P.C. before the learned Judge, Family Court, Nayagarh for maintenance, which has been registered as Crl.M.P. No.97 of 2021. Being noticed, the Opposite Party-Husband is avoiding to appear in the said proceeding before the learned Judge, Family Court, Nayagarh.

That apart, the distance between Khordha to Nayagarh is more than 60 K.Ms. The Petitioner has no independent source of income. No female member is available at home to look after her minor children in her absence. Hence, it would be difficult on her part to travel such a long distance to pursue the day to day proceeding before the Family Court, Khordha.

Law is well settled that while considering application for transfer of matrimonial proceedings, convenience of wife must be looked at. In the case of (N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha), reported in 2022 SCC Online SC 1199, the Supreme Court held as follow:

"9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioral pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer."

(Emphasis supplied)

Taking note of the submissions made by the learned Counsel for the Petitioner so also the settled position of law, this Court is inclined to allow the prayer made in the transfer petition for transfer of proceeding in C.P. No.31 of 2022, pending in the Court of learned Judge, Family Court, Khordha to the Court of learned Judge, Family Court, Nayagarh.

Accordingly, the learned Judge, Family Court, Khordha is directed to transmit the case record in C.P. No.31 of 2022 to the Court of learned Judge, Family Court, Nayagarh at the earliest, preferably within a period of seven days from the date of production of certified copy of this Judgment.

On receiving the case record in C.P. No.31 of 2022 from the learned Judge, Family Court, Khordha, the Court of learned Judge, Family Court, Nayagarh shall re-register the said case, if so required, and proceed further in accordance with law giving due opportunity to both the parties and shall try to conclude the said proceeding at the earliest, preferably within a period of six months from the date of receipt of case record in C.P. No.31 of 2022.

It is made clear that both the parties will be at liberty to appear before the Court of learned Judge, Family Court, Nayagarh through virtual mode, with due permission of the concerned Court, in case they face any difficulty on any date to appear physically before the said Court. The learned Judge, Family Court, Nayagarh is requested to explore the facility of Video Conferencing available in the said Court and allow the parties to appear through Video Conferencing mode following the guidelines prescribed under the Orissa High Court Video Conferencing for Courts Rules, 2020. However, on the dates of effective hearing, i.e., for examination and cross-examination of witnesses and other purposes, for which their presence may be required by the Court and if it is so ordered, the parties so also their witnesses, if any, shall remain physically present before the learned Judge, Family Court, Nayagarh.

To avoid delay and notice, both the parties are directed to make a query themselves or through their Counsel from the Court of learned Judge, Family Court, Nayagarh to ascertain the date and purpose of posting of C.P. No.31 of 2022 and participate in the said proceeding.

Both the parties are further directed not to seek for unnecessary adjournments and cooperate with the learned Judge, Family Court, Nayagarh, who shall do well to conclude the said proceeding at the earliest.

With the said observation and direction, the transfer petition stands allowed and disposed of.

Office is directed to communicate a copy of this Judgment to the Court of learned Judge, Family Court, Khordha so also the Court of learned Judge, Family Court, Nayagarh enabling the said Courts to act in terms of the observations made above.

Interim order dated 15.09.2022 passed in I.A. No.334 of 2022 stands vacated.

Urgent certified copy of this Judgment be granted on proper application as per rules.