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2016 DIGILAW 563 (CAL)

Pampa Banerjee v. Mridul Banerjee

2016-07-18

SAHIDULLAH MUNSHI

body2016
JUDGMENT : Sahidullah Munshi, J. This application under Section 24 of the Code of Civil Procedure has been filed by Smt. Pampa Banerjee praying for transfer of Matrimonial Suit No.1425 of 2010 pending in the Court of the learned District Judge at Barasat, North 24-Parganas to the Court of the District Judge, Cooch Behar. 2. The petitioner is the wife of the opposite party. The petitioner claims that she was married in 2009 with the opposite party. Subsequently, the husband opposite party filed a matrimonial suit being No.1425 of 2010 before the learned Court of District Judge at Barasat for dissolution of marriage by granting decree of divorce under Section 13 of the Hindu Marriage Act, 1955. A copy of the plaint of the said matrimonial suit has been annexed to the revisional application. 3. On perusal of the said plaint, it appears that the petitioner wife was a permanent resident of Village and Post Office : B.S. Road, Police Station : Cooch Behar (North), District : Cooch Behar. She was residing with the husband at her matrimonial home at Village and P. O. : Udayrajpur (3 No. Chandigarh), near Nabin Sangha, 9 No. Railway Gate, Police Station : Madhyamgram, District : North 24-Parganas. It is the admitted fact that the wife left her matrimonial home and went to her mother and thereafter, started residing there at Cooch Behar permanently. The matrimonial suit has been filed against the wife although she has been residing at Cooch Behar and she has no place to stay in the district of North 24-Parganas. The opposite party husband has also never tried to get the wife back to her matrimonial home after she left sometime in August, 2009 as has been stated by the husband opposite party in the plaint of his matrimonial suit. 4. The wife petitioner has stated in the present application that the husband started torturing her repeatedly and she was driven away from her matrimonial home as a result of which, she had no other option but to stay with her mother at Cooch Behar. She, however, filed a complaint before the Officer-in-Charge, Madhyamgram Police Station being FIR No.1328 dated 24th July, 2010 under Sections 498A/34 of the Indian Penal Code. After such complaint was filed, the aforesaid matrimonial suit has been filed by the husband for divorce. 5. She, however, filed a complaint before the Officer-in-Charge, Madhyamgram Police Station being FIR No.1328 dated 24th July, 2010 under Sections 498A/34 of the Indian Penal Code. After such complaint was filed, the aforesaid matrimonial suit has been filed by the husband for divorce. 5. Be that as it may, the petitioner wife has stated that she is living at Cooch Behar at the mercy of her widow mother as her father already died in the year 1999 and that she has no independent source of income to maintain herself. It is very difficult for her to attend the Court to take steps in the Matrimonial Suit No.1425 of 2010 pending in the Barasat Court. Accordingly, she has made this prayer for transfer of the matrimonial suit to Cooch Behar district. With regard to the prayer for transfer of the proceeding, the High Court and the District Courts have wide powers to consider the difficulties of the petitioner seeking transfer of cases. 6. Such power, however, has to be exercised with reasonableness and keeping in view of the interest of justice. Cases transferred under Section 24 of the Code provide exception to the procedural law that a Court having territorial jurisdiction can only try a suit, a competent Court of pecuniary jurisdiction, even if having no territorial jurisdiction, can try a suit or hear an appeal or deal with and dispose of other proceedings if transferred to that Court and such disposal cannot be regarded as without jurisdiction. The inconvenience or difficulty contemplated under Section 24 of the Code for transfer of a case should be of such nature which may lead to injustice, if the parties asked to continue the trial at a place, where it has been instituted, or when the Court comes to a conclusion that the suit has been filed in a particular Court or causing injustice. As a general rule, Court should not interfere and transfer a matter unless the expenses and the difficulties would lead to injustice. In the matter of transfer of the case from one Court to another the main consideration is failure of justice and, therefore, a case is to be made out that the party has a reasonable apprehension that justice will be denied to him. 7. In the matter of transfer of the case from one Court to another the main consideration is failure of justice and, therefore, a case is to be made out that the party has a reasonable apprehension that justice will be denied to him. 7. It has been decided by the Hon'ble Supreme Court in Sunita Singh v. Kumar Sanjoy & Anr., reported in AIR 2002 SC 396 that convenience of wife should get paramount importance with regard to the transfer of the proceeding. 8. In the case of Sunita Singh (supra), the wife was a working lady and that she was working and living in 'Delhi' while the husband filed a matrimonial proceeding against her in 'Ara'. The wife/petitioner contended that it would be roughly 1100 kilometeres from Delhi to Ara and that she had to travel that distance to defend the matrimonial proceeding which was not possible for her and as a result, she prayed for transfer of the matrimonial proceedings to Delhi Court. She also stated that she had no one with whom she can stay in Ara because her parents are residents of Gurgaon. In that background of the case, the Hon'ble Apex Court has held that it is the convenience of the wife should be taken into consideration and the Hon'ble Court held that circumstances referred to herein above were sufficient to make the transfer petition absolute. 9. In the present case, the wife, as it appears from the pleading, is a destitute lady and is incapable to maintain herself. She is wholly dependent upon her widow mother. 10. She has been residing permanently at Cooch Behar which is few hundred kilometeres away from Barasat and since she has no one to look after, other than her widowed mother, it will be just and proper to transfer the matrimonial case before the learned District Judge, Cooch Behar. 11. However, the averments made in the application have not been controverted by appearance of any learned advocate representing the opposite party. The matter was called on in the first half when no one appeared on behalf of the opposite party to contest the application. In the second half, the matter was again called on when no one appeared for the opposite party husband. 12. The matter was called on in the first half when no one appeared on behalf of the opposite party to contest the application. In the second half, the matter was again called on when no one appeared for the opposite party husband. 12. Upon perusal of the records and on consideration of the averments made in the application under Section 24, I am satisfied that this is a fit case where this Court should direct the learned Court below to transfer the records of Matrimonial Suit No.1425 of 2010 to the Court of the learned District Judge, Cooch Behar. Accordingly, the learned District Judge, Barasat is directed to transfer the records of Matrimonial Suit No.1425 of 2010 to the Court of the learned District Judge at Cooch Behar which Court shall register the same and dispose it of as expeditiously as possible. 13. The application under Section 24 is, thus, allowed. Application is allowed.