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2014 DIGILAW 209 (ORI)

Banita Das v. Akshaya Kumar Mallick

2014-03-28

C.R.DASH

body2014
JUDGMENT : C. R. DASH, J. - In this application under Section 24 of the Code of Civil Procedure (for short 'the CPC'), the petitioner-wife has sought for transfer of C.P.Case No. 95 of 2012 from the Court of learned Judge, Family Court, Puri to the Court of learned Judge, Family Court, Bhubaneswar. 2. The grounds of transfer, as outlined in the petition, are that the petitioner being a poor woman, lives with her widow mother at Bhubaneswar; it is difficult on her part to travel to Puri to attend the Court on each date of posting; there is no other male member in the house of the petitioner to help her out in the case and it is the well settled position of law that convenience of the wife is paramount consideration in a matrimonial dispute. 3. Learned counsel for the opposite party-husband submits that the petitioner is working as a contract teacher TGT (CBZ) at Government High School, Berboi in the district of Puri. She takes up journey to-and-fro to Berboi everyday to attend the classes assigned to her. Puri being a nearby place to her place of posting, it is not difficult on her part to attend the Court at Puri. It is further submitted that the mother of the petitioner is also a working lady and there is no difficulty at all on the part of the petitioner to attend the Court at Puri. It is further submitted by learned counsel for the opposite party that the opposite party is ready and willing to pay the litigation expenses, though the opposite party has been rendered jobless in the meantime for the criminal case filed by the petitioner against him. In the alternative, it is submitted that, if at all, the transfer petition is to be allowed, the case may be transferred to a third place, as the opposite party apprehends danger to his life, in the event of his attending the Court at Bhubaneswar. 4. Though no case of threat is made out by the petitioner in her petition, in course of hearing, it is urged that the petitioner apprehends danger in the event of her attending the Court at Puri, as she is receiving threats from the side of the opposite party. 5. 4. Though no case of threat is made out by the petitioner in her petition, in course of hearing, it is urged that the petitioner apprehends danger in the event of her attending the Court at Puri, as she is receiving threats from the side of the opposite party. 5. Learned counsel for the petitioner has relied on the cases of Sumita Singh v. Kumar Sanjay and another, AIR 2002 SC 396 , Pratibha Khemka v. Sanjay Kumar Khemka, 2005 (II) OLR (SC) 190, Jhunu Biswal v. Ratan Biswal, 2013 (I) OLR 934 , to substantiate his contention that it is the convenience of the wife in a matrimonial dispute, which should be looked into while considering the question of transfer of a case. Learned counsel for the opposite party, on the other hand, relies on the cases of Y.A.Ajit v. Sofana Ajit, 2007 (II) OLR (SC) 703, Kamaljit Kaur v. Prince Singh Chhabra, 2006 (I) OLR (SC) 456, Pratibha Khemka v. Sanjay Kumar Khemka, 2005 (II) OLR (SC) 190, to substantiate his contention that concept of place, where cause of action arises, is to be kept in mind while considering a petition for transfer and on the ground that being a lady it is not safe for the wife to travel is no ground for transfer at all. 6. It is settled law that a plaintiff, as arbiter litis, has a right to select his own forum and that this right should not be interfered with except on very strong grounds. It is further settled in law that jurisdiction under Section 24 CPC should be exercised with extreme caution and plaintiff could not be stopped from going on, where he has a right of action against defendant. The search, therefore, should be for justice and the Court must be satisfied that justice could more likely to be done between the parties by refusing to allow plaintiff to continue his suit in the forum of his choice. 7. Keeping in view the aforesaid broad principle of law, let me proceed to address the contentions raised by the learned counsel for the parties. In the case of Sumita Singh (supra), the husband had filed a matrimonial proceeding against the wife in Ara, Bhojpur; a place 1100 K.Ms. away from Delhi. 7. Keeping in view the aforesaid broad principle of law, let me proceed to address the contentions raised by the learned counsel for the parties. In the case of Sumita Singh (supra), the husband had filed a matrimonial proceeding against the wife in Ara, Bhojpur; a place 1100 K.Ms. away from Delhi. The wife had taken the plea that she is now living and working in Delhi; that she would be unable to travel up and down from Delhi to Ara and she has no one with whom she can stay in Ara, because her parents are residing at Gurgaon. Taking into consideration all such facts and the distance factor, the Hon'ble Supreme Court held that it is the convenience of wife that must therefore be looked at while considering the petition for transfer of the matrimonial proceeding from Ara to Delhi. 8. In the case of Pratiba Khemka (supra) the matrimonial proceeding was filed in Family Court at Satna (Madhya Pradesh). The wife sought for transfer of the matrimonial proceeding from Family Court, Satna to the Family Court at Barabanki. The grounds on which the transfer was sought for' are that, she being a single lady, it is, difficult on her part to travel 600 K.Ms., as there is no direct transportation between Satna and Barabanki. It was also urged that she has a small boy, who is studying in 1st standard and who recently had a cataract operation. She, therefore, requires to be with her son, which makes it difficult for her to travel. It was lastly urged that she has aged parents, who are not in a position to travel with her and that her mother had recently suffered a heart attack. Taking all these factors into consideration and the apprehension of the husband that he may receive threat and face danger, if the case is transferred to Barabanki, the Hon'ble Supreme Court passed order to transfer the case to a third place, i.e., Lucknow by holding that convenience of the lady has to be kept in mind. In the case of Jhunu Biswal (supra), the wife approached this Court under Section 24 CPC seeking transfer of a matrimonial suit from the Court of learned Civil Judge (Senior Division), Sonepur to the Court of learned Civil Judge (Senior Division), Bolangir. In the case of Jhunu Biswal (supra), the wife approached this Court under Section 24 CPC seeking transfer of a matrimonial suit from the Court of learned Civil Judge (Senior Division), Sonepur to the Court of learned Civil Judge (Senior Division), Bolangir. The Court found that the opposite party-husband has virtually admitted that the wife is residing within the territorial limit of Bolangir district. Relying on the case of Sumita Singh (supra), this Court passed order for transfer of the aforesaid suit from Sonepur to Bolangir. 9. Facts in the present case are however different. The ground of transfer as set out in the petition, is difficulty on the part of the petitioner-wife to travel to Puri, as she is staying with her widow mother at Bhubaneswar and there is no other male member in the house of the petitioner to help her out. Contrary to such assertion in the petition, the petitioner is working as a contract teacher at Berboi, which is a place nearer to Puri and she travels up and down to that place everyday to attend her duty. Further, her mother is stated to be a working lady, though a widow. There is no other ground for seeking transfer of the proceeding from the Court of the learned Judge, Family Court, Puri to the Court of the learned Judge, Family Court, Bhubaneswar. At the time of hearing, it is argued that as the petitioner has filed a criminal case against the opposite party-husband at Puri and the same is pending, in the event of her going to Puri to attend the family Court, there is threat perception to her person and life from the side of the opposite party. Such apprehension in the mind of the petitioner is denied with vehemence by the opposite party-husband submitting that at no point of time any threat was given to the petitioner-wife, though she has gone to Puri often to attend the criminal Court and, had that been a fact, the petitioner would have taken such ground in the transfer petition itself. It is also argued on behalf of the petitioner that though the petitioner is working as a contract teacher at Berboi, such a fact itself would not disqualify her from seeking transfer of the matrimonial proceeding from Puri to Bhubaneswar. 10. It is also argued on behalf of the petitioner that though the petitioner is working as a contract teacher at Berboi, such a fact itself would not disqualify her from seeking transfer of the matrimonial proceeding from Puri to Bhubaneswar. 10. Hon'ble Supreme Court, in the case of Y.A. Ajit (supra), on a thorough discussion of the matter in a matrimonial dispute, has held that concept of place, where cause of action arises, is to be kept in mind while considering transfer of a matrimonial dispute from one place to another. In the case of Kamaljit Kaur (supra), the Hon'ble Supreme Court refused to transfer the matrimonial proceeding from Dhanbad to the Family Court, Rourkela on the ground that, being a lady, it is not safe for the wife to travel from Dhanbad, Jharkhand to Rourkela. However, Hon'ble Supreme Court asked the opposite party-husband to send in advance Demand Draft of sufficient amount to the wife before the date of proceeding to bear to-and-fro journey expenses by Reserved Second Class in train and for stay in a 3 Star Hotel. In the case of Pratibha Khemka (supra), as discussed above, the matrimonial proceeding was transferred to a third place keeping in view the convenience of the wife and the apprehension in the mind of the husband. The aforesaid discussion, therefore, makes it clear that ordinary jurisdiction of the Court, which the plaintiff has chosen, should not be disturbed lightly, if there is no pressing circumstance or/and if justice is likely to suffer by not allowing such transfer. Convenience of the wife as stressed by the learned counsel for the petitioner cannot be the convenience as supposed by the petitioner herself. The convenience of the wife means the convenience as perceived and gathered by the Court from the facts and circumstances of each case. 11. In the present case, when the wife is able to go to Berboi daily to attend her duties, it may not be difficult on her part to go to Puri to attend the Court. Similarly, the threat perception canvassed by the petitioner-wife is only, an after-thought, as that is not at all a ground in the transfer petition, and it is well known to civil law that civil proceeding is bounded by strict pleadings. Taking into consideration all the aforesaid facts and discussions made, I do not find it fit to allow the transfer petition. Taking into consideration all the aforesaid facts and discussions made, I do not find it fit to allow the transfer petition. However, the opposite party-husband is directed to pay Rs. 2,000/-(Rupees two thousand) in advance to the petitioner-wife on each date of posting of the case for her expenses on the next date of posting. 12. In view of such fact, the first instalment should be paid @ Rs. 4,000/- (Rupees four thousand) to meet the expenses of current date of posting and the future date of posting. The payment of litigation expenses at the above rate shall be paid till the litigation is over and concluded before the learned Judge, Family Court, Puri. The learned Judge, Family Court, Puri may do well to dispose of the proceeding as, expeditiously as possible, preferably within a period of six months from the date of appearance of both the parties. The TRP (C) is accordingly disposed of. Petition disposed of.