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2019 DIGILAW 780 (GAU)

Rupamoni Kalita v. Kaushik Kalita

2019-06-24

SUMAN SHYAM

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JUDGMENT : Suman Shyam, J. Heard Mr. H. Bezbaruah, learned counsel for the petitioner. I have also heard Mr. A. Chamuah, learned counsel appearing for the respondent. 2. This petition has been filed by the wife invoking the jurisdiction of this Court under Section 24 of the Code of Civil Procedure, praying for transferring the proceeding registered as FC(Civil) Case No. 517/2017, pending in the Court of the learned Principal Judge, Family Court No.1, Kamrup (M) at Guwahati to the Court of the learned District Judge, Bongaigaon, Assam, on the grounds mentioned therein. 3. The marriage between the petition and the respondent took place on 23/01/2011 at Village- Chalantapara, in the district of Bongaigaon, Assam, as per the customary rights. The petitioner and the respondent started their conjugal life and continued to live as husband and wife at Guwahati until 09/07/2016, when the petitioner was compelled to leave the residence of her husband. According to the petitioner, she was subjected to ill treatment as well as physical and mental torture by her husband, as a result of which, she had to lodge an FIR dated 03/07/2015 before the Hatigaon Police Station, based on which Hatigaon PS Case No. 200/2015 was registered under Section 498(A)/420/326/307/507/427 of the IPC. The FIR was, however, subsequently withdrawn by the petitioner based on a compromise arrived at with the respondent. 4. The respondent had, in the meantime, qualified in the Assam Civil Service (ACS) examination and was appointed as Deputy Superintendent of Police (DSP) under the Assam Police Department. However, the respondent was arrested on 28/03/2018 in connection with Dibrugarh PS case No. 936/2016 pertaining to illegalities committed in his appointment as DSP and eventually, he was discharged from service. 5. Mr. Bezbaruah submits that the petitioner had recorded her statement as a witness in connection with Dibrugarh PS case No. 936/2016 and since the respondent has been discharged from service, she entertains a genuine apprehension of threat to her life. According to Mr. Bezbaruah, the petitioner was earlier living with her younger brother at Guwahati till the month of November, 2018 but thereafter, she had to shift to Abhayapuri so as to live under the care and custody of her father, who is a retired Government servant. 6. According to Mr. Bezbaruah, the petitioner was earlier living with her younger brother at Guwahati till the month of November, 2018 but thereafter, she had to shift to Abhayapuri so as to live under the care and custody of her father, who is a retired Government servant. 6. Primarily urging that the petitioner has no source of income nor does she have anyone to escort her to travel from Abhayapuri to Guwahati so as to attend the Family Court proceeding, Mr. Bezbaruah has prayed for transferring the proceedings to Bongaigaon by taking into consideration the inconvenience that would be faced by his client, if the proceedings are continued at Guwahati. It is also the submission of the learned counsel that there is a separate proceeding registered under Section 12 of the Domestic Violence Act, 2005, pending in the Court of the learned SDJM, North Salmara, Abhayapuri being CR (DV) Case No. 71/2019, wherein notice has already been issued by the learned trial Court. As such, it would be convenient for both the parties if the present proceeding is also transferred to Bongaigaon. 7. By placing reliance on two decisions of this Court reported in Sikha Paul Choudhury Vs. Dilip Paul Choudhury, (2002) 2 GauLT 599 Pallavi Saikia (Bharali) Vs. Mirganka Bharali,2006 2 GauLT 135], Mr. Bezbaruah submits that the convenience of the wife is required to be taken into account by the Court while considering the prayer for transfer of a matrimonial proceeding. The learned counsel submits that having regarding to the circumstances of this case, more particularly the threat to the life of the petitioner, the prayer made by his client be allowed by this Court. 8. Mr. Bezbaruah has also relied upon a decision rendered in the case of Bhartiven Ravibhai Rav Vs. Ravibhai Boovindbhai Rav, (2017) 6 SCC 785 to argue that it would not be difficult for the respondent to appear at Bongaigaon if both the proceedings are conducted in the same place. 9. Opposing the prayer for transfer, the learned counsel for the respondent Mr. Chamuah contends that the respondent has sufficient means to support herself and the petitioner is living in Guwahati even till today. However, according to Mr. Chamuah, the present proceeding has been instituted only to cause harassment to the respondent out of personal grudge. 9. Opposing the prayer for transfer, the learned counsel for the respondent Mr. Chamuah contends that the respondent has sufficient means to support herself and the petitioner is living in Guwahati even till today. However, according to Mr. Chamuah, the present proceeding has been instituted only to cause harassment to the respondent out of personal grudge. By referring to the photographs downloaded from the face book post of the petitioner, which are annexed to the affidavit-in-reply, Mr. Chamuah submits that the petitioner has been travelling around the world and is living a lavish life. As such, the present is not case where the petitioner can be said to have been living in penury, requiring any assistance from this Court. 10. By referring to the decision of the Supreme Court rendered in the case of Anindita Das Vs. Srijit Das, (2006) 9 SCC 197 , Mr. Chamuah submits that save and except making a bald statement regarding lack of financial resources, no good ground has been made out by the petitioner so as to allow her prayer for transfer of the proceedings. It is also the contention of Mr. Chamuah that while considering the prayer for transfer, the Court is required to take note of the balance of convenience of both the parties and not only the convenience of the wife. In support of his above argument, Mr. Chamuah has relied upon a decision of this Court rendered in the case of Bappi Paul Vs. Ranjan Paul, (2001) 1 GauLR 485. 11. Mr. Chamuah further submits that his client has been discharged from service and, therefore, he is without any income. Further, by inviting the attention of this Court to the order dated 11/10/2018 passed in Bail Application No. 2334/2018, whereby the respondent was released on bail in connection with Dibrugarh PS case No. 936/2016, Mr. Chamuah submits that there is a condition imposed by this Court that the petitioner cannot leave the territorial limits of the trial Court without the written permission of the Court. Under the circumstances, it would be extremely inconvenient for the respondent to pursue the Divorce petition, if the same is transferred to the Court at Bongaigaon. 12. I have considered the submissions made by the learned counsel for both parties and have gone through the materials available on record. 13. Under the circumstances, it would be extremely inconvenient for the respondent to pursue the Divorce petition, if the same is transferred to the Court at Bongaigaon. 12. I have considered the submissions made by the learned counsel for both parties and have gone through the materials available on record. 13. From the pleadings brought on record, it appears that the petitioner has entered appearance after receipt of summons in connection with FC(C) case No. 517/2017, pending before the Court of learned Principal Judge, Family Court No.1, Kamrup (M) at Guwahati and has also filed her written statement. After framing of issues, the trial has commenced in the aforesaid proceeding. The respondent has already filed evidence on affidavit of as many as 3 (three) witnesses and the matter is pending for cross-examination of the witnesses. It was at that stage that the petitioner had approached this Court by filing the present petition seeking transfer of the Divorce proceeding. 14. Although Mr. Bezbaruah has submitted that his client had shifted out of Guwahati in the month of November, 2018, yet, there is nothing on record to substantiate the said claim. On the contrary, taking note of the materials available on record, it appears that she has a proper place of residence, both at Abhayapuri and at Guwahati. It is also to be noted herein that the petitioner has admittedly started living separately from her husband since 09/07/2016 but till date she had not filed any application praying for maintenance allowance. The aforesaid fact goes to show that the petitioner is comfortably placed and not facing any financial problem in her life. As such, the first ground on which the prayer for transfer has been made, viz. financial difficulty, cannot be accepted by this Court. 15. In so far as the second ground is concerned, the materials on record goes to show that the petitioner is capable of travelling on her own and there are evidence on record to show that she has recently visited several places outside India as well. From the statements made in the affidavit, I find that the petitioner was working as a Senior Sales Manager under the Reliance Life Insurance until a few years back. From the statements made in the affidavit, I find that the petitioner was working as a Senior Sales Manager under the Reliance Life Insurance until a few years back. Having worked as a Senior Sales Manager in a reputed Private Sector Company, it would be difficult for this Court to accept that the petitioner would not be able to travel a distance of 150 KMs i.e. from Abhayapuri to Guwahati, to attend the Court proceeding. Moreover, the petitioner has not denied that her younger brother lives in Guwahati and there is no reason cited by the petitioner's counsel as to why the petitioner cannot take the help of her brother living at Guwahati so as to attend the Court proceeding. 16. As noticed above, the respondent is out on bail by virtue of an order passed by this Court. As per the conditions imposed by this Court in the bail order, the respondent cannot leave the territorial limits of the trial Court without obtaining the prior written permission. As such, if the proceedings are transferred to Bongaigaon, than it is clear that on each and every occasion, the respondent will have to seek written permission from the trial court so as to appear and pursue the matter. Since the respondent is out of employment and is facing charges under the IPC in a criminal proceeding, I am of the view that it would be extremely inconvenient for the respondent if the proceedings are transferred from Guwahati. 17. Law is firmly settled that the Court must consider the convenience of the wife while dealing with a prayer for transfer of a matrimonial proceeding. The Court is required to ensure that the wife is not subjected to any inconvenience that unduly prevents her from defending her interest effectively in the pending proceeding. Whether, refusal of the prayer for transfer would result into serious inconvenience being caused to the wife is a matter that would depend on the facts and circumstances of each case and no straight jacket formulae can be laid down on that behalf. 18. Coming to the facts of the case, save and except urging the grounds noted above, there is nothing on record so as to convince this Court that if the prayer for transfer is rejected, the same would cause prejudice to the interest of the petitioner. 18. Coming to the facts of the case, save and except urging the grounds noted above, there is nothing on record so as to convince this Court that if the prayer for transfer is rejected, the same would cause prejudice to the interest of the petitioner. Despite expressing apprehension on her life, the petitioner has not approached the Police seeking protection. 19. As regards the arguments advanced by the learned counsel for the petitioner based on the proceeding initiated under the D.V. Act, 2005, I find from the record that the said proceeding has been instituted only on 17/05/2019 and the statements made therein, relates to the incidents that are not the incidents of recent past. In order to avoid any prejudice being caused to the interest of the petitioner, this Court refrains from making any further comment on the merit of the case projected in DV Case No. 71/2019. However, having perused the petition filed by the petitioner in the aforesaid proceeding, this Court is of the view that pendency of the DV Case at Abhayapuri, cannot be a ground to transfer the matrimonial proceeding from Guwahati to Bongaigaon. Consequently, the decisions cited by Mr. Bezbaruah is found to be of no assistance to the petitioner in the facts and circumstances of the case. 20. For the reasons stated herein above, the transfer petition is held to be devoid of merit and is accordingly dismissed. However, considering the urgency expressed by Mr. Bezbaruah, the learned Family Court is requested to proceed with the trial in FC(C) Case No. 517/2017 and disposed of the same as expeditiously as possible. 21. Both the parties to render necessary cooperation in that regard. Transfer petition stands disposed of. There would be no order as to costs.