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2016 DIGILAW 402 (ORI)

Sunil Kumar Pradhan v. Meera Pradhan

2016-05-19

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : Vineet Saran, J. This intra-Court appeal has been preferred by the appellant-husband to set aside the order dated 28.8.2015 passed by the learned Single Judge of this Court in TRP(C) No.09 of 2015, by which while disallowing the prayer of the respondent-wife for transfer of the Civil Proceeding No. 96 of 2013 from the Court of learned Judge, Family Court, Jajpur to the Court of learned Judge, Family Court, Bhubaneswar, the learned Single Judge has directed the appellant-husband to pay Rs.15,000/-on each and every date towards the travel and stay expenses of the respondent-wife and her companion. 2. The factual matrix of the case, in hand, is that the appellant married to the respondent on 10.3.2010 as per Hindu Rites and Customs. After the marriage, there was discontentment between the appellant and the respondent. Consequently, the respondent insisted the appellant to live separately from the family, which was objected to by the appellant, as a result of which there was dissension between the appellant and the respondent. Thereafter, the parents of the respondent took her to their house on 6.1.2012 and since then the respondent is residing with her parents. Since the respondent did not turn up to the matrimonial home, the appellant finding no other alternative filed C.P. Case No. 96 of 2013 before the learned Judge, Family Court, Jajpur under Section 13(1) of the Hindu Marriage Act. As the respondent stays at Bhubaneswar and the appellant is running his business at Cuttack and the cause of action having arisen at Jajpur, the respondent filed an application under Section 24 of C.P.C. seeking for transfer of the C.P. Case No. 96 of 2013 to the Court of learned Judge, Family Court, Bhubaneswar on the pretext that after the discontentment with the appellant, she is staying with her parents at Bhubaneswar and there is no other male member to accompany her to attend the Court proceedings before the learned Judge, Family Court, Jajpur and it causes lot of difficulties as she has no other source of income to maintain the proceeding before the learned Judge, Family Court, Jajpur. On being noticed, the respondent entered appearance and filed an application under Section 19 of the Hindu Marriage Act, which was dismissed by the learned Judge, Family Court, Jajpur. On being noticed, the respondent entered appearance and filed an application under Section 19 of the Hindu Marriage Act, which was dismissed by the learned Judge, Family Court, Jajpur. But subsequently, she filed an application under Section 24, C.P.C. before this Court, which was registered as TRP(C) No.9 of 2015 seeking for transfer of C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur to the Court of learned Judge, Family Court, Bhubaneswar. The appellant on being noticed by this Court, entered appearance and filed his counter affidavit and upon hearing vide order dated 28.8.2015 this Court disposed of the said application disallowing the prayer for transfer of the divorce suit bearing C.P. Case No. 96 of 2013 from the Court of learned Judge, Family Court, Jajpur to the Court of learned Judge, Family Court, Bhubaneswar. But relying upon Anindita Das v. Srijit Das, (2006) 9 SCC 197 the learned Single Judge directed the appellant to pay an amount of Rs.15,000/-on each and every date towards the travel and stay expenses of the respondent-wife and her companion. Hence this appeal. 3. Mr. D.R. Mohapatra, learned counsel appearing for the appellant states that if the application has been filed under Section 24 of C.P.C. for transfer of C.P. Case No. 96 of 2013 from the Court of learned Judge, Family Court, Jajpur to learned Judge, Family Court, Bhubaneswar, the learned Single Judge could have given a finding why the said application will not be allowed, but instead of doing so directed for payment of Rs.15,000/-on each and every date towards the travel and stay expenses of the respondent-wife and her companion, without realizing the difficulties of the appellant and his source of income and to mitigate the expenses so directed to be paid to the respondent. The reference made to Anindita Das (supra) could not have any application to the present context, rather, the learned Single Judge without understanding the difficulties faced by the appellant passed the order impugned and therefore, he seeks for interference of this Court. 4. Mr. P. Verma, learned counsel, who entered appearance for the respondent-wife, in turn contended that since it is difficult on the part of the respondent-wife to commute from Bhubaneswar to Jajpur to attend the day to day Court proceedings, the learned Single Judge has awarded the cost to be borne by the appellant. 4. Mr. P. Verma, learned counsel, who entered appearance for the respondent-wife, in turn contended that since it is difficult on the part of the respondent-wife to commute from Bhubaneswar to Jajpur to attend the day to day Court proceedings, the learned Single Judge has awarded the cost to be borne by the appellant. In any case, since the application has been filed under Section 24 of C.P.C., the learned Single Judge could have considered the hardship to be faced by the respondent in proper perspective and allowed transfer of C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur to the Court of learned Judge, Family Court, Bhubaneswar. 5. On the facts pleaded above, it appears that since the writ appeal has been filed against the order passed by the learned Single Judge, the Registry has pointed out a defect with regard to the maintainability of the writ appeal. But the learned counsel appearing for the appellant produced a Full Bench judgment of the Kerala High Court in the case of Balan v. Sivagiri Sree Narayana Dharma, AIR 2006 Ker 58 and considering the same, the objection so raised with regard to maintainability of the writ appeal has been overruled by this Court vide order dated 11.05.2016. That apart learned counsel for the respondent stated that he has no objection if the matter is heard by this Court to grant appropriate relief for just and proper adjudication of the C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur 6. Having heard learned counsel for the parties, without calling for a counter affidavit, with the consent of learned counsel for the parties, the appeal is being disposed of at the stage of admission. 7. Having heard learned counsel for the parties, without calling for a counter affidavit, with the consent of learned counsel for the parties, the appeal is being disposed of at the stage of admission. 7. The undisputed fact is that the appellant has filed an application under Section 13(1) of Hindu Marriage Act, which has been registered as C.P. Case No. 96 of 2013 before the learned Judge, Family Court, Jajpur and the respondent filed an application under Section 24 of C.P.C. before this Court seeking for transfer of C.P. Case No. 96 of 2013 from the Court of learned Judge, Family Court, Jajpur to the Court of learned Judge, Family Court, Bhubaneswar on the ground of financial hardship and there being no other male member to accompany her to participate in the proceedings at Jajpur, which is about 130 KMs away from Bhubaneswar. More so, she is residing at Bhubaneswar with her parents and it will be convenient on her part to participate in the proceedings at Bhubaneswar. Apart from the same, it will not cause any prejudice to the appellant to attend the proceedings at Bhubaneswar as he is carrying on his business at Cuttack, which is only 30 KMs away from Bhubaneswar. So also because of convenience of both the parties, if the C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur is transferred to the Court of learned Judge, Family Court, Bhubaneswar, it will be easier for both the parties to attend the proceedings at Bhubaneswar for early disposal of the matter. Learned counsel for both the parties have agreed that they have no objection if the C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur is transferred to the Court of learned Judge, Family Court, Bhubaneswar. 8. In Pratibha Khemka v. Sanjay Kumar Khemka, 2005(II) OLR (SC) 190, the Apex Court held that convenience of the lady has to be kept in mind. The grounds made out in the petition being sufficient for the purpose of transfer, directed for transfer of the case from Family Court, Satna to the District Judge, Lucknow, who shall either hear it himself or place it before the appropriate Court. 9. The grounds made out in the petition being sufficient for the purpose of transfer, directed for transfer of the case from Family Court, Satna to the District Judge, Lucknow, who shall either hear it himself or place it before the appropriate Court. 9. Taking into consideration the ratio decided by the Apex Court in Pratibha Khemka (supra), this Court in Smt. Amita Das v. Harihar Das, 2007 (I) CLR 148 also directed for transfer of the matrimonial suit pending before the learned Civil Judge (Sr. Division), Baripada to the Court to learned Civil Judge (Sr. Division), Balasore. 10. For the foregoing analysis, taking into consideration the convenience of the parties and for ends of justice, equity and fair play and as agreed to by both the parties, this Court is of the considered view that C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur should be transferred to the Court of learned Judge, Family Court, Bhubaneswar. Accordingly, the impugned order passed by learned Single Judge is set aside and it is directed that the C.P. Case No. 96 of 2013 pending before the learned Judge, Family Court, Jajpur be transferred to the Court of learned Judge, Family Court, Bhubaneswar for disposal in accordance with law. 11. The Writ Appeal is allowed. No order as to costs.