Tumpa Pal (Dey) vs Bimal Chandra Paul

Bibek Chaudhuri, J

Wife/petitioner has filed the instant application under Section 24 of the Code of Civil Procedure with a prayer to transfer Matrimonial Suit No. 19 of 2018 pending before the learned District Judge at Purulia to the Court of the learned District Judge at Bankura or any other Court having competent jurisdiction.

Admittedly, the petitioner and the opposite party are legally married wife and husband. As a result of marital discord, the petitioner left her matrimonial home at Purulia and she has been residing at village - Patpur within Police Station - Onda in the district of Bankura. The petitioner has prayed for transfer of above-mentioned matrimonial suit on the following grounds :-

(i) The petitioner has been residing within the jurisdiction of the learned District Judge, Bankura and the matrimonial suit should be transferred to the Court of the learned District Judge, Bankura.

(ii) Two other proceedings instituted by the petitioner, one under Section 498A of the Indian Penal Code along with other penal provisions and the other under Section 125 of the Code of Criminal Procedure are pending before the learned Chief Judicial Magistrate at Bankura. In both the cases the opposite party has entered appearance.

(iii) In the wedlock between the parties, petitioner gave birth to a female child who is now aged about four years and she has been residing under the care and protection of the petitioner. The petitioner will face hardship if she is compelled to attend Purulia Court leaving her minor child at Bankura.

(iv) Distance between the Purulia and Bankura is about 99.5 K.Ms. in one way. Therefore, the petitioner will have to travel about 200 K.Ms. per day to contest the said matrimonial suit.

Learned Advocate for the petitioner has urged that considering practical difficulty, convenience of the parties and financial hardship of the petitioner, the matrimonial suit should be transferred to Bankura. It is also submitted that the opposite party will not suffer any hardship because he is attending the Court of the learned Chief Judicial Magistrate, Bankura to contest the criminal proceedings. If the matrimonial suit is tried in a Court of competent jurisdiction at Bankura there will be no inconvenience on the part of the opposite party.

The opposite party has not filed any affidavit-in-opposition against the application under Section 24 of the C.P.C. Mr. Partha Pratim Roy, learned Advocate for the opposite party submits that pendency of criminal proceedings against the husband in a particular Court cannot be held to be a ground to transfer a matrimonial suit from one Court to another. It is true that the petitioner will have to travel about 200 K.Ms. on a day when the suit is fixed for hearing, but she will not suffer any inconvenience if she is adequately compensated by the opposite party towards the expenses to be borne by her for travelling to Purulia from Bankura and back. It is also submitted by Mr.

Roy that in a proceeding under Section 24 of the C.P.C. arising out of a matrimonial suit, convenience of the wife is prime consideration. But where inconvenience is not pleaded in the application the same cannot be presumed because of the fact that two other criminal proceedings against the opposite party is pending at Bankura.

In course of argument it is learnt that the opposite party is a primary School Teacher posted at Village --Dimdiah within P.S. - Purulia. It is needless to say that the opposite party is attending the Court of the learned Chief Judicial Magistrate at Bankura to contest the above-mentioned criminal proceedings taking leave from his school on the date when the matters are fixed for hearing. If the matrimonial suit is transferred to Bankura in addition to leave taken by the opposite party, he will have to take further leave to represent the said suit. I am given anxious thought over the matter as to whether pendency of criminal cases in a particular Court against the husband ought to be considered as a ground for transfer of a matrimonial suit instituted in a Court where the parties had led their marital life together before they are living separately. In my considered view, the answer is in the negative. The petitioner never pleads that the Court of the learned District Judge, Purulia has no territorial jurisdiction to try the suit. Only because some other cases instituted at the instance of the petitioner is pending at Bankura, there is no hard and fast rule under Section 24 of the C.P.C. to transfer a matrimonial suit from Purulia to Bankura.

However, two other factual circumstances are left for consideration. It is not disputed that the petitioner is living with a minor child aged about four years at Bankura. The opposite party has failed to produce any document to show that he has been paying maintenance allowance to the petitioner for her maintenance as well for their minor child. Therefore, petitioner has been maintaining her minor child without any help of the opposite party/husband.

I have carefully gone through the averments made in the application under Section 24 of the Code of Civil Procedure. I do not find any averment to the effect that the petitioner will face inconvenience, either financially or physically to attend Purulia Court from Bankura. Only in paragraph 16 the petitioner has stated that in the matrimonial suit the opposite party may file various connected applications and the petitioner in turn will have to file written objections thereto and "the same will be inconvenient for the petitioner". In paragraph 14 of the application the petitioner has pleaded about her financial hardship. Learned Counsel for the opposite party proposes to compensate the petitioner adequately to meet her financial hardship.

In view of such circumstances, I am not inclined to transfer Matrimonial Suit No. 19 of 2018 from Purulia to Bankura. However, the opposite party is directed to pay expenses incurred by the petitioner and another person who will accompany the petitioner to Purulia Court towards the expenses for their travelling and other incidental expenses like food etc. Such expenses are assessed at Rs. 1,000/- per day. The opposite party is directed to pay a sum of Rs.1,000/- per day on which date the matrimonial suit shall be fixed for hearing in the Court of the learned District Judge, Purulia to the petitioner.

If the opposite party fails to bear such cost, the petitioner is at liberty to file appropriate application in a Court of competent jurisdiction seeking for transfer.