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2020 DIGILAW 4 (CAL)

Anika Sen Alias Sampa Rani Bhadra v. Sudipta Sen

2020-01-02

BIBEK CHAUDHURI

body2020
JUDGMENT 1. This is an application under Section 24 of the Code of Civil Procedure filed by the wife of the petitioner praying for transfer of Matrimonial Suit 50 of 2017 pending before the 1st Court of the learned Additional District Judge at Alipore to any Court of competent jurisdiction at Kalyani in the District of Nadia. 2. For proper adjudication of the instant application following facts are considered to be necessarily recorded : Marriage of the petitioner with the opposite party was solemnized on 26th February, 2014. On 4th March, 2014 she was either driven out or left the matrimonial home. The husband/opposite party subsequently instituted a suit for nullity of the said marriage on the ground that the petitioner is suffering from schizophrenia. The said suit was withdrawn with an understanding that the parties would file an application for mutual divorce under Section 13B of the Hindu Marriage Act in a competent Court having jurisdiction to try such matter. It was also agreed upon by and between the parties that the opposite party will pay a sum of Rs.5 lacs to the petitioner before the decree of mutual divorce be passed. It is also undisputed that the opposite party paid a sum of Rs.2.5 lacs to the petitioner and after receiving the said money the petitioner stopped attending the Court. Accordingly, the said proceeding for mutual divorce was dropped on the ground that the statutory period had expired. 3. Subsequently, in 2017, opposite party instituted Matrimonial Suit No. 50 of 2017 which is presently pending before the 1st Court of the learned Additional District Judge at Alipore. 4. The petitioner has prayed for transfer of the said suit to Kalyani on the ground that her father is suffering from brain hemorrhage and he is unable to move. The mother of the petitioner is also suffering from hyper- tension and other ailments. Therefore, there is nobody at her paternal home to accompany her to Alipore Court to contest the said suit. Secondly, the petitioner/wife has been working as Assistant Professor and head of the department of Computer Science in Kalyani Mahavidyalaya. Her college hours is from 11 a.m. to 4 p.m. Apart from taking classes, as head of the department, undertakes various responsibilities of college administration. Therefore, it is not possible for her to attend the Court at Alipore to contest the said matrimonial suit. 5. Her college hours is from 11 a.m. to 4 p.m. Apart from taking classes, as head of the department, undertakes various responsibilities of college administration. Therefore, it is not possible for her to attend the Court at Alipore to contest the said matrimonial suit. 5. It is pointed out by the learned Advocate for the petitioner that she has been residing at Kalyani for her job commitment and in support of his contention he refers to certain documents wherefrom it is ascertained that she has taken a flat on rent at the rate of Rs.7,000/- per month at Kalyani. It is also submitted by the learned Advocate for the petitioner that the petitioner lodged a complaint under Section 498A of the Indian Penal Code against the opposite party and other matrimonial relations at Thakurpukur P.S. within the jurisdiction of Alipore. 6. The said complaint culminates to filing of the charge-sheet against the opposite party and others. The petitioner does not deny that she will have to come once to Alipore to depose in the said criminal case. The opposite party on the other hand has filed a complaint under Section 406 of the Indian Penal Code in which proceeding the petitioner is on bail. Charge-sheet has not been submitted as yet in the said proceeding. On the contrary, in the matrimonial proceeding the petitioner will have to come to Alipore to consult her case with the learned Advocate. She will require to be present on each and every date of hearing to see that her case is properly conducted. In this respect the petitioner will suffer from actual inconvenience. This inconvenience must be taken into consideration while disposing of the instant proceeding and in support of his contention, learned Advocate for the petitioner relies upon a decision of the Honble Supreme Court in the case of Rajani Kishor Pardeshi vs. Kishor Babulal Pardeshi reported in (2005) 12 SCC 237. 7. Learned Advocate for the opposite party, on the other hand has urged to take into consideration the conduct of the petitioner starting from the date of marriage till date. After marriage the opposite party and his family members noticed unnatural violent behaviour of the petitioner. Accordingly, it was enquired upon and they came to know that the petitioner is suffering from schizophrenia. After marriage the opposite party and his family members noticed unnatural violent behaviour of the petitioner. Accordingly, it was enquired upon and they came to know that the petitioner is suffering from schizophrenia. The petitioner initially agreed to dissolve the marriage mutually and both the parties filed a joint application under Section 13B of the Hindu Marriage Act. But immediately after receiving a sum of Rs.2.5 lacs from the opposite party she stopped appearing before the Trial Court. Finding no other alternative the opposite party has filed the aforesaid matrimonial suit for dissolution of marriage by decree of divorce at Alipore. It is contended by the learned Advocate for the opposite party referring to a decision of the Honble Supreme Court in the case of Indian Overseas Bank, Madras Vs. Chemical Construction Company and Ors. reported in (1979) 4 SCC 358 that the principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitle to institute his suit in any forum which the law allows him. The Court should not lightly change that forum and compel him to go to another Court with consequent increase in inconvenience and expense of prosecuting his suit. The mere balance of convenience in favaour of proceedings in another Court, albeit a material consideration, may not always be a true criterion justifying the transfer. 8. Learned Advocate for the opposite party also refers to Section 25 of the Code of Civil Procedure and tries to make a distinction stating inter alia that Section 25 empowers the Honble Supreme Court to pass an order of transfer of suit if the Court is satisfied that an order under this Section 'is expedient for ends of justice'. However, no such event is contained in Section 25 of the Code of Civil Procedure. Furthermore, it is urged that the petitioner is an Assistant Professor of a college and head of the department of Computer Sciences, therefore, she is not dependant upon anybody economically. An independent working lady can freely cover a distance of about 40 kms. to contest the matrimonial suit. 9. Under the facts and circumstances of this case, the principles laid down in Rajani Kishor Pardeshi (supra) is not applicable. 10. An independent working lady can freely cover a distance of about 40 kms. to contest the matrimonial suit. 9. Under the facts and circumstances of this case, the principles laid down in Rajani Kishor Pardeshi (supra) is not applicable. 10. Having heard the submissions made by the learned Advocates for the petitioner and the opposite party and on perusal of the application under Section 24 of the Code of Civil Procedure, affidavit-in-opposition thereto and the affidavit-in-reply, it is found that material change concerning the dispute between the parties are not in dispute. Though, this Court is not in a position to make any comment on the allegation of the opposite party, but prima facie it seems to this Court strange and surprising that a lady suffering from schizophrenia has been discharging a responsible duty of an Assistant Professor of a college and head of the department of Computer Sciences. There is no allegation of schizophrenia behaviour against the petitioner by the college authority. However, for the purpose of this proceeding if I accept the submission made by the learned Advocate for the opposite party, a question naturally comes for consideration as to whether a lady who has been suffering from schizophrenia should be permitted to travel alone a distance of about 40 kms. to contest a suit where her marital tie is sought to be dissolved by a decree for divorce. If such allegation is accepted it may so happen that the petitioner may suffer from schizophrenic outburst at Alipore where there will be nobody to control her. At least in Kalyani she will have her paternal relations to look after her. In the instant matter this Court does not concede the distance to be travelled by the petitioner to contest the suit at Alipore. This Court relies upon the submission on behalf of the opposite party that the lady is suffering from schizophrenia and convenience demands that the trial of the suit would continue at the place where the lady resides. 11. In view of the above discussion, I am inclined to allow the instant application under Section 24 of the Code of Civil Procedure. Matrimonial Suit No. 50 of 2017 be transferred to the Court of the learned Additional District Judge, Kalyani, Nadia for trial and disposal. 12. 11. In view of the above discussion, I am inclined to allow the instant application under Section 24 of the Code of Civil Procedure. Matrimonial Suit No. 50 of 2017 be transferred to the Court of the learned Additional District Judge, Kalyani, Nadia for trial and disposal. 12. Let a copy of this order be sent to the learned Additional District Judge, 1st Court at Alipore, South 24- Parganas and the learned Additional District Judge, Kalyani at Nadia through the department for information and compliance. 13. I make it clear that while disposing of the instant application I have not come to any finding as to whether the petitioner is suffering from schizophrenia or not and the entire matter is left open the Trial Court to decide while deciding the grant of dissolution of marriage in course of trial of the suit. 14. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon usual undertaking.