Sayani Sikder (Mazumder) vs Swarup Kumar Sikder

Bibek Chaudhuri, J

The petitioner is the legally married wife of the opposite party who seeks for transfer of Matrimonial Suit No.616 of 2018 presently pending before the learned Additional District Judge, Barrackpore, North 24 Parganas filed by the opposite party to any Court of competent jurisdiction at Durgapur in the district of Paschim Burdwan.

It is pertinent to mention that the above numbered Matrimonial Suit filed by the opposite party is for restitution of conjugal rights under the provision of Special Marriage Act against the present petitioner.

The petitioner has prayed for transferring the said Matrimonial Suit to Durgapur mainly on the grounds that in the wedlock between the parties the petitioner gave birth to a male child on 23rd June, 2015 at her paternal home at Durgapur. Since the birth of the child the opposite party /husband did not take any information about the well being of the petitioner and their child. During her stay at matrimonial home she was subjected to physical and mental torture. As a result, the petitioner initiated a proceeding under Section 498A of the Indian Penal Code and other cognate penal provisions against her husband and other matrimonial relations at Durgapur and the said criminal case is pending before the learned A.C.J.M., Durgapur. Secondly, the opposite party / husband has refused and neglected to pay maintenance to the petitioner and to her minor child in spite of such order being passed in a proceeding under Section 125 of the Code of Criminal Procedure by a learned Magistrate at Durgapur. Thirdly, the child of the parties has now attained four years of age and he is studying in a school at Durgapur. The petitioner has old parents. It is not possible for them to accompany the petitioner to Barrackpore Court on each and every occasion when the date is fixed in the said matrimonial suit to contest the same. Therefore, it is prayed by the petitioner that Matrimonial Suit No.616 of 2018 may be transferred to any Court of competent jurisdiction at Durgapur. The opposite party has filed affidavit-in-opposition stating, inter alia, that the petitioner has suppressed in her petition that she has been working as HR Executive in a private hospital at Durgapur. In spite of her having independent source of income she has been pressing for maintenance. For suppression of such material fact the instant petition is liable to be dismissed.

The petitioner, in turn, has filed affidavit-in-reply reiterating her stand as it was taken in her petition.

Mr. Debjit Mukherjee, learned advocate for the petitioner submits that the matrimonial suit is required to be transferred to Durgapur specially due to the reason that another proceeding under Section 498A of the Indian Penal Code is pending between the parties. The husband has entered appearance in the said proceeding and has been contesting the same. Therefore, the husband will not suffer any inconvenience to reach and contest the matrimonial suit at Durgapur if it is so transferred. It is also submitted by Mr. Mukherjee that the minor child of the petitioner is now aged about four years and he has been studying in a school at Durgapur. It is not possible for the petitioner to leave her minor child and contest the suit travelling the distance of about 179 kilometres from Durgapur. In support of his contention Mr. Mukherjee refers to a decision of the Hon'ble Supreme Court in the case of Tejalben versus Mihirbhai Bharatbhai Kothari reported in (2016) 3 Supreme Court Cases 69. In the said report the matrimonial proceeding was transferred from Rajkot to Jamnagar in the State of Gujarat on the ground that at Jamnagar other proceedings between the parties were pending. Same principle is enunciated in G.R. Bhuvaneshwari versus G. S. Puttaraju reported in (2018) 13 SCC 650 where the Hon'ble Supreme Court was pleased to transfer a matrimonial proceeding from Maddur to Mysore considering, inter alia, that the petitioner is a single mother responsible for looking after her minor child at Mysore. In Anupama Patil versus Nataraj Veeranagouda Patil reported in (2018) 15 SCC 354 the matrimonial suit was transferred from the Family Court at Hubballi to the Family Court of Bengaluru, Karnataka on the same ground of pendency of other proceedings between the parties at Bengaluru. Mr. Mukherjee has called upon Court to apply the said principles laid down by the Hon'ble Supreme Court in the matter of transfer of matrimonial case from one Court to the other.

Mr. Shiba Prasad Ghosh, learned advocate for the opposite party, on the other hand, vehemently argues that the petitioner is a working lady. She suppressed the said fact in the application under Section 24 of the Code of Civil Procedure. The petitioner regularly attends her place of work leaving behind her minor child. Therefore, she can also travel to Barrackpore to contest the suit. It is also submitted by Mr. Ghosh, learned advocate for the opposite party that the opposite party has been going on paying maintenance allowance as per order passed in a proceeding under Section 125 of the Code of Criminal Procedure to the petitioner. Therefore, she has no financial hardship to contest the suit at Barrackpore.

Learned counsel for the opposite party further submits that in a proceeding under Section 24 of the Code of Civil Procedure it is not tried that only inconvenience of the wife/petitioner should be looked into. Relative convenience and inconvenience of both the parties should be considered. If the matrimonial suit is transferred to Durgapur, the opposite party also will have to travel a distance of about 179 kilometres. It will cause inconvenience to him. He invites the Court to consider this aspect also. It is also submitted by the learned counsel for the opposite party that the petitioner practically entered appearance in Matrimonial Suit No.616 of 2018 and filed an application under Section 36 of the Special Marriage Act praying for alimony pendente lite. The said matter is pending before the learned Additional District Judge, Barrackpore. The conduct of the petitioner suggests that she would suffer any inconvenience to contest the suit at Barrackpore. In view of the fact that no such allegation has been made out in the application.

Having regard to the submission made by the learned counsels for the petitioner and the opposite party and on due consideration of the averment made in the application, affidavit-in-opposition and affidavit-in-reply as well as keeping in mind the guiding principles laid down by the Hon'ble Supreme Court governing the field the following undisputed facts are ascertained:-

(1) The petitioner has been staying at Durgapur.

(2) The marital relationship between the parties is suffered from distrust and discord.

(3) At last two criminal proceedings between the parties are pending at Durgapur.

(4) The matrimonial suit for restitution of conjugal rights filed by the opposite party is pending at Barrackpore wherein the petitioner had entered appearance and filed an application under Section 36 of the Special Marriage Act praying for alimony pendente lite and the said proceeding is still pending before the learned Court of trial.

(5) In the wedlock between the parties the petitioner gave birth to a male child in the month of June, 2015. He is now aged about four years and is a student of a school at Durgapur.

(6) Last but not the least the petitioner has been working as HR Executive in a private hospital at Durgapur.

At the time of argument the learned counsel for the opposite party has proposed that the Court should also consider the relative inconvenience of the opposite party and he proposes to transfer the said matrimonial suit to a Court where no inconvenience may be caused for both the parties. This Court is of the view that the proposal made by the learned counsel for the opposite party is well acceptable at this stage.

For the reasons stated above, the instant application under Section 24 of the Code of Civil Procedure is disposed of with a direction that the Matrimonial Suit being No.616 of 2018 pending before the learned Additional District Judge, Barrackpore, North 24 Parganas be transferred to the Court of the learned District Judge, Burdwan in the district of Purba Burdwan.

A copy of this order be sent to the learned District Judge, North 24 Parganas at Barrackpore and the learned District Judge, Purba Burdwan for information and compliance through the department forthwith.

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