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2020 DIGILAW 260 (CAL)

Debasish Sarkar v. Basana Mondal Sarkar

2020-02-21

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - The husband/petitioner has filed the instant application under Section 24 of the Code of Civil Procedure praying for transfer of Matrimonial Suit No.166 of 2019 instituted by the opposite party/wife in the Court of the learned District Judge, Uttar Dinajpur to the Court of the learned District Judge, Jalpaiguri. 2. It is stated by the petitioner that his marriage was solemnized with the opposite party on 27th June, 2010. After marriage both the husband and wife used to stay at Jalpaiguri. The petitioner is a teacher of Rajganj M.N. High School in the district of Jalpaiguri. Initially marital relationship between the parties was very cordial but subsequently differences cropped up between the parties and the opposite party left her matrimonial home and took shelter at her uncle's house at village Baraobari in the district of Uttar Dinajpur. The petitioner also stated that her paternal home is at village Sukanta Polly Majhra in the district of Malda. The petitioner came to know that the opposite party has instituted a suit for restitution of conjugal rights being Matrimonial Suit No.166 of 2019 in the Court of the learned District Judge, Uttar Dinajpur at Raiganj. Though the paternal home of the opposite party is at Malda, she has filed the suit at Raiganj. The petitioner, on the other hand presently residing at Shaktigarh Upper Colony in the district of Jalpaiguri. He will face tremendous hardship if he is compelled to contest the said suit at Uttar Dinajpur in a regular manner. The distance between Uttar Dinajpur and Jalpaiguri is about 155 km in one way. It takes about 5 hours to reach Raiganj from Jalpaiguri. The petitioner may not get leave from his school to contest the said suit. Moreover, one of the relatives of the opposite party is a very influential person and the petitioner will not get legal assistance at Raiganj for proper representation of his case in the said suit. Therefore, the petitioner has prayed for transferring the said suit to any other court of competent jurisdiction and preferably to the Court of the learned District Judge, Jalpaiguri. 3. The opposite party has filed an affidavit-in-opposition against the said application under Section 24 of the Code of Civil Procedure. It is specifically stated by the opposite party that she used to stay with her husband at Raiganj, Jalpaiguri only occasionally. 3. The opposite party has filed an affidavit-in-opposition against the said application under Section 24 of the Code of Civil Procedure. It is specifically stated by the opposite party that she used to stay with her husband at Raiganj, Jalpaiguri only occasionally. Most of the time she used to stay at Ilahar, Uttar Dinajpur at her native matrimonial home. After she was driven out from her matrimonial home she took shelter at her uncle's house at Hemtabad. 4. The opposite party still wants to lead conjugal life with the petitioner and therefore she has filed an application under Section 9 of the Hindu Marriage Act in the Court of the learned District Judge, Uttar Dinajpur at Raiganj. It is further stated by the opposite party that she initiated a proceeding against the petitioner under the Protection of Women from Domestic Violence Act. The petitioner has been contesting those proceedings at Raiganj. He filed two criminal appeals before the learned District Judge at Raiganj and he is duly represented by his learned Advocates. The opposite party has also filed an application under Section 125 of the Code of Civil Procedure praying for maintenance in the said proceeding, the opposite party has entered appearance and has been contesting. Therefore the allegation that he will not get legal assistance from the learned Advocates practicing at Raiganj Court is absolutely baseless and false. Under such circumstances the opposite party has prayed for dismissal of the instant revisional application. 5. I have heard the learned Advocates for the petitioner and the opposite parties. It is needless to say that in a proceeding under Section 24 of the Civil Procedure Code arising out of matrimonial suit, paramount consideration is the convenience of the wife. The following decisions may be relied on in this regard:- i. ( Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi, 2005 12 SCC 237 ). ii. ( Usha Choudhary vs. Dilip Choudhary, 2004 13 SCC 683 ). iii. ( Smita Sharma vs. Vivek Sharma, 2004 13 SCC 607 ). iv. ( Archana Singh vs. Surendra Bahadur Singh, 2005 12 SCC 395 ). v. ( Neelima Rani Alias Neelima Rani Palakonda vs. Srikanth, 2005 12 SCC 387 ). vi. ( Uma vs. Hargovind Singh Bisht, 2005 12 SCC 230 ). 6. It is not disputed that other legal proceedings between the parties are pending at Raiganj Court. In those proceedings the petitioner duly appeared. v. ( Neelima Rani Alias Neelima Rani Palakonda vs. Srikanth, 2005 12 SCC 387 ). vi. ( Uma vs. Hargovind Singh Bisht, 2005 12 SCC 230 ). 6. It is not disputed that other legal proceedings between the parties are pending at Raiganj Court. In those proceedings the petitioner duly appeared. The petitioner also filed two criminal appeals before the learned District Judge, Raiganj. In Tejalben vs Mihirbhai Bharatbhai Kothari, 2016 3 SCC 69 , the Hon'ble Supreme Court held that when other proceedings between the parties are pending in one Court, there is no reason as to why the suit for divorce shall not be transferred to the said Court. In this case relying on the above mentioned decision, I do not find any merit in the instant application under Section 24 of the Code of Civil Procedure. 7. Accordingly the application under Section 24 of the Code of Civil Procedure is dismissed on contest, however without cost. 8. Let a copy of this order be sent to the learned District Judge Uttar Dinajpur at Raiganj for information. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.