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2010 DIGILAW 225 (GAU)

Eva Dey v. Bappi Dey

2010-03-25

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. This is an application made under Section 24, read with Section 151 of the Code of Civil Procedure, seeking transfer of the application, made, under Section 13 of the Hindu Marriage Act, by the opposite party herein seeking dissolution of her marriage with the present petitioner, the application having given rise to Title Suit (Divorce) No. 10/2009, in the court of the learned Additional District Judge (FTC), Hojai. 2. Heard Ms. B. Acharya, learned Counsel for the petitioner, and Mr. I. Uddin, learned Counsel for the opposite party. 3. For the purpose of seeking transfer of the said suit, from Hojai, to the District Judge, Jorhat, the petitioner's case, in brief, is thus: The petitioner and the opposite party herein are legally wedded husband and wife and a male child was born to them on 23.10.2002. The child is, how, about 7 years old. There is no male member in the parental family of the petitioner and her father works in the State of Arunachal Pradesh, there is no earning member in her family except her father and, hence, the petitioner, having no independent source of livelihood, has been facing extreme financial hardship in maintaining herself and her child, who is blind and studies, at Jorhat, in a school, meant for blind children. On an application seeking maintenance having been made by the petitioner under Section 125, Cr.PC, the opposite party has been directed to pay maintenance allowance @ Rs. 2,000 per month. Though the opposite party filed a revision against the order so granting maintenance, the revision has been dismissed. The petitioner does not have any male member to accompany and escort her from Jorhat to Hojai to attend to the court proceedings, at Hojai, and there is no person to look after the petitioner's blind child. 4. Resisting the present application, the opposite party has submitted to the effect, inter alia, that he is a Grade-IV employee of the railways, he receives Rs. 12,000 per month as his salary and that he is required to look after his ailing mother and his sister and if the case is transferred out of Hojai, it will not be possible for him to attend the court proceedings at Jorhat. 5. The opposite party also submits that he is agreeable to bear the expenses for the petitioner's journey from Jorhat to Hojai and stay at Hojai. 6. 5. The opposite party also submits that he is agreeable to bear the expenses for the petitioner's journey from Jorhat to Hojai and stay at Hojai. 6. While considering the present application for transfer, it needs to be noted that there is nothing in the evidence on record to show that the petitioner has any independent source of income or livelihood except the small amount of Rs. 2,000 per month, which has been allowed, as maintenance, for her and her blind child. The petitioner's father, admittedly, works in the State of Arunachal Pradesh and she has no male person to accompany or escort her from Jorhat to Hojai. There is also, admittedly, none to look after the petitioner's blind child, who studies in a school, at Jorhat, as mentioned hereinabove, if the petitioner has to leave Jorhat and go to Hojai to attend the said divorce proceedings. 7. In the circumstances indicated above, it can be safely held that compared to the hardships, which the petitioner may face if she is required to attend the divorce proceeding at Hojai, the opposite party is in a far better position to go to Jorhat and pursue the divorce proceeding, because his mother can be looked after by his sister; whereas the said blind child has none, but the petitioner to take care of him, and to look after him. 8. Situated thus, this Court is of the view that in the facts and attending circumstances of the present case, the prayer for transfer needs to be allowed. 9. Mr. I. Uddin, learned Counsel for the opposite party, has, in support of the opposite party's case that the said divorce proceeding may not be transferred to Jorhat, relied on the decision in Anindita Das v. Srijit Das (2006) 9 SCC 197 , wherein the Supreme Court has observed and directed as under: 3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by this Court. On an average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. 4. On an average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. 4. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met. 7. The respondent shall send in advance to the petitioner, money for a 2nd class AC train ticket for herself and a companion. The respondent shall also pay stay expenses of the petitioner and her companion in a 3-star hotel. The trial court shall ensure that the petitioner has been paid the travel expenses in advance and that the hotel expenses are paid to her on each and every occasion when she is required to attend the court at Delhi. 10. While considering the above observations made in Anindita Das (supra), it may be pointed out that the present case needs to be considered in the light of the fact that here is, as petitioner, a person, who is a woman and since the opposite party, as her husband had refused to provide maintenance to her and her (petitioner's) child, she had to approach the court for obtaining maintenance allowance from the opposite party. Here is a woman, who has to look after, and take care of, a blind child and no concern has been expressed, at any stage, by the opposite party as regards the welfare of the said child. Here is, thus, a woman, who is completely helpless, has no male member in her parental family, other than her father, who serves in the State of Arunachal Pradesh, and cannot, therefore, escort her (petitioner) from Jorhat to Hojai. To the facts of the case at hand, therefore, the observations, made in Anindita Das (supra), do not apply. 11. Here is, thus, a woman, who is completely helpless, has no male member in her parental family, other than her father, who serves in the State of Arunachal Pradesh, and cannot, therefore, escort her (petitioner) from Jorhat to Hojai. To the facts of the case at hand, therefore, the observations, made in Anindita Das (supra), do not apply. 11. In view of the above and in the interest of justice, the Title Suit (Divorce) No. 10/2000 aforementioned is hereby transferred from the Court of Additional District Judge, Hojai, to the Court of the District Judge, Jorhat, for disposal in accordance with law. 12. In order to avoid delay in disposal of the said suit, the parties to this transfer application are hereby directed to appear, in the court of the learned District Judge, Jorhat, in connection with Title Suit (Divorce) No. 10/2009, on 25.4.2010. 13. Before the date fixed, the learned Additional District Judge (FTC), Hojai, shall ensure that the relevant records are received by the District Judge, Jorhat. 14. With the above observations and directions, this transfer petition shall stand disposed of. 15. Send forthwith a copy of this order to the Additional District Judge (FTC), Hojai, and the District Judge, Jorhat.