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2004 DIGILAW 65 (GAU)

Durga Pandit v. Pradip Kr. Pandit

2004-02-03

AFTAB H.SAIKIA

body2004
JUDGMENT A.H. Saikia, J. 1. Heard Mr. S.C. Biswas, learned Counsel for the Petitioner and also heard Mr. R.D. Lal, learned Counsel for the Respondent. 2. As per direction of this Court, the Petitioner, Smti Durga Pandit has made herself present in the Court. When the matter is taken up, the Respondent Sri Pradip Kumar Pandit is found to be absent. In earlier occasion, this Court directed the parties to be present to day. But the sole Respondent has failed to appear to-day before this Court despite such direction. 3. Be that as it may, this is a transfer petition preferred by the wife Smti Durga Pandit seeking transfer of F.C. (Civil) Case No. 26/03 pending, before the Principal Judge, Family Court, Kamrup, Guwahati to the Court of District Judge, Sonitpur at Tezpur for trial and disposal of the said case at Tezpur. 4. The case of the Petitioner is that she was married to the Respondent on 13.6.2000 and due to their wedlock a male child was born. But the Petitioner had been inhumanly tortured by the husband/Respondent for dowry and ultimately on 6.1.03 by causing intolerable physical assault on her person, the Petitioner was ousted by the Respondent/husband from his house. As a result of which she was compelled to leave her husband's residence at Guwahati and went to her father's residence at Tezpur and at present she has been residing therein. The Petitioner has also filed an application Under Section 125 Code of Civil Procedure before the Chief Judicial Magistrate, Tezpur claiming maintenance from her husband/Respondent for her and her minor son and notice has also been served upon the Respondent in the said case. But in order to defeat the said maintenance proceedings, the Respondent has filed the F.C. (Civil) Case No. 26/03 for restitution of conjugal right before the learned Principal Judge, Family Court at Guwahati only to harass her physically and mentally. It is stated that she has already suffered due to her husband's cruel behaviour during her marital life and if at this stage, she is dragged to appear before the Principal Judge, Family Court at Guwahati, she will suffer, irreparable loss and injury and the same would cause much inconvenience to her in attending the Court both physically and financially. Hence this petition. 5. Hence this petition. 5. The Respondent has denied all these allegations made in this petition by filing affidavit-in-opposition and stated inter-alia that it was the Petitioner who has been harassing him by filing various criminal cases against him before the Criminal Court, Tezpur. For instance, he has annexed a copy of the complaint case instituted under Section 498(A)/323/294 IPC (Annexure-1 to his Affidavit). It is also contended that it is not correct that the notice of Section 125 Code of Criminal Procedure proceeding was ever served upon him, but the Petitioner in a clandestine manner obtained an ex-parte order of maintenance on 27.5.03 in Misc. Case No. 21/03 at Tezpur vide Annexure-2 to the counter affidavit. 6. A careful perusal of the averments made in the pleadings of the respective parties and also upon hearing the learned Counsel for the parties, this Court is of the view that as the Petitioner is presently residing at Tezpur at her father's residence without having sufficient means of livelihood, it will be convenient for her if the matrimonial proceeding in question is being tried and heard at Tezpur. 7. In a recent case reported in AIR 2002 SC 396 (Sunita Singh v. Kumar Sanjoy and Anr.) the Apex Court held that in a case of transfer of matrimonial proceeding initiated by the husband against the wife, the convenience of the wife must be looked at. 8. That being the legal position, this Court is inclined to transfer the matrimonial proceeding, being F.C. (Civil) No. 26/03 from the Court of the learned Principal Judge, Family Court, Guwahati to the Court of the District Judge, Sonitpur at Tezpur forthwith. It is ordered accordingly. 9. Since the parties are represented by their respective counsel, they are directed to appear before the learned District Judge, Sonitpur at Tezpur on 16.2.04 to obtain further orders. 10. Transmit the records of the case of F.C. (Civil) 26/03 from the Family Court, Guwahati to the Court of the District Judge, Sonitpur, Tezpur immediately In the result, the petition stands allowed. Petition allowed.