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2016 DIGILAW 84 (CAL)

Prasansita Roy nee Sen v. Animesh Roy

2016-01-27

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : In this application under Section 24 of the Code of Civil Procedure, 1908 the petitioner-wife has prayed for, transfer of the matrimonial suit filed by the opposite party-husband and pending before the Court of the learned District Judge, Burdwan to the Court of the learned Additional District Judge, Arambagh, Hooghly. It is the case of the petitioner in this application that after being subjected to severe physical tortures inflicted by the opposite party-husband, who is a police constable she was compelled to leave the matrimonial home at Burdwan and she is presently residing with her aged parents at Burdwan. The petitioner has categorically stated in her application that she has no independent source of income and she is presently living her livelihood at the mercy of her father. In the application the petitioner has stated that in view of the inhuman physical tortures upon her body by the opposite party-husband, she was constrained to file a complaint with the police authorities and a case has been registered against the opposite party-husband under Sections 498A/406/323/324/307/506/34 of the Indian Penal Code, and Sections 3 and 4 of the Dowry Prohibition Act. In view of the said criminal proceedings being lodged against him, the opposite party-husband approached this Court for obtaining anticipatory bail under Section 438 of the Criminal Procedure Code, 1973. When the application for anticipatory bail was taken up for hearing by this Court, the opposite party-husband through his lawyer made oral submission before the Court that he is aware of his moral obligation to maintain his wife and on his own he agreed to pay Rs.7,000/- per month to the petitioner-wife on account of her maintenance and after sending Rs. 7,000/- to the petitioner for three months, the opposite party is no more paying any maintenance to the petitioner. In these circumstances, according to the petitioner she is facing great hardship to contest the matrimonial suit before the Court of the learned District Judge, Burdwan by travelling the long distance from Arambagh. However, Mr. 7,000/- to the petitioner for three months, the opposite party is no more paying any maintenance to the petitioner. In these circumstances, according to the petitioner she is facing great hardship to contest the matrimonial suit before the Court of the learned District Judge, Burdwan by travelling the long distance from Arambagh. However, Mr. Chatterjee appearing for the opposite party submitted that in the order dated June 2, 2015 passed by this Court granting anticipatory bail to the opposite party, there was no condition imposed on the opposite party to continue to pay Rs.7,000/- per month to the petitioner and as such the petitioner cannot raise any grievance about non-payment of Rs.7,000/- per month by the opposite party to her. I am aghast to hear such submission of Mr. Chatterjee. From the order dated June 2, 2015 passed by this Court in CRM No. 5482 of 2015 it is ex facie evident that in view of the submission made on behalf of the opposite party-husband to pay Rs.7,000/- per month to the petitioner on account of her maintenance, the learned counsel for the State did not oppose the prayer for anticipatory bail of the opposite party-husband. This Court while disposing of the said application being CRM No.5482 of 2015 also held that having regard to the voluntary offer and undertaking of the opposite party-husband to maintain the wife, no useful purpose will be served by taking him into custody and on such ground alone the prayer for anticipatory bail was allowed. However, from the records of this case particularly in his affidavit-in-opposition the opposite party-husband has admitted that after paying the monthly sum of Rs.7,000/- to the petitioner-wife on account of her maintenance from the month of October 2015 he on his own volition has stopped making payment of the said maintenance amount to the petitioner-wife. Thus, there cannot be any doubt that the petitioner being a Government servant that too, being a member of the police force, has violated his voluntary undertaking given to this Court on June 2, 2015 in CRM No.5482 of 2015 and he is liable to face the necessary consequence. Thus, there cannot be any doubt that the petitioner being a Government servant that too, being a member of the police force, has violated his voluntary undertaking given to this Court on June 2, 2015 in CRM No.5482 of 2015 and he is liable to face the necessary consequence. In paragraph 10 of the application the petitioner-wife has categorically stated that she is a deserted and lonely village lady and there is no one to accompany her to travel the distance between her house at Arambagh and the Court of the learned District Judge, Burdwan and she is facing extreme hardship to contest the matrimonial suit before the Court of the learned District Judge, Burdwan. The averment made in paragraph 10 of the application has not been disputed by the opposite party-husband in his affidavit-in-opposition. Further the fact remains that the petitioner is not receiving any maintenance from the opposite party-husband and she is facing great financial hardship not only to engage an advocate at Burdwan but also to repeatedly travel to Burdwan to hold conferences with her learned advocate. In order to oppose this application the opposite party-husband, in his affidavit-in-opposition, has alleged that the distance between the present resident at Arambagh and the Court of the learned District Judge, Burdwan is about 42 k.m. each way and the petitioner does not face any hardship at all to contest the matrimonial suit before the Court of the learned District Judge at Burdwan. However, the opposite party could not substantiate that any of the averments made by the petitioner in her application is incorrect. The opposite party-husband has further alleged that the only ground taken by the petitioner-wife for transfer of the matrimonial suit in this application is distance and poverty. From the facts already discussed above, the financial distress faced by the petitioner, is beyond any doubt. Further, the conduct of the opposite party-husband giving an undertaking to this Court to obtain anticipatory bail and thereafter intentionally violating such undertaking cannot be countenanced by this Court. For all the foregoing reasons, I find that the petitioner-wife has substantiated her ground by obtaining transfer of the matrimonial suit from the Court of the learned District Judge, Burdwan to the Court of the learned Additional District Judge, Arambagh. For all the foregoing reasons, I find that the petitioner-wife has substantiated her ground by obtaining transfer of the matrimonial suit from the Court of the learned District Judge, Burdwan to the Court of the learned Additional District Judge, Arambagh. Accordingly, the Matrimonial Suit No.406 of 2015 (Sri Animesh Roy vs. Smt. Prasansita Roy nee Sen) is withdrawn from the Court of the learned District Judge, Burdwan and the same is transferred to the Court of the learned Additional District Judge, Arambagh. The learned District Judge, Burdwan is directed to forthwith transmit all the records of the Matrimonial Suit No.406 of 2015 (Sri Animesh Roy vs. Smt. Prasansita Roy nee Sen) to the Court of the learned District Judge, Hooghly, who shall in turn transmit the same to the Court of the learned Additional District Judge, Arambagh. With the above directions CO No. 3609 of 2015 stands disposed of. However, there shall be no order as to costs. Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.