Persis Bhavin Shah, D/o. Bipin Shah v. Bhavin Kishorbhai Shah, S/o. Kishorbhai Shah
2022-10-07
UMESH A.TRIVEDI
body2022
DigiLaw.ai
ORDER : 1. This application is filed under Section 24 of the Code of Civil Procedure, 1908, praying for transfer of Family Suit No. 1216 of 2021 pending before the Family Court, Vadodara to the Family Court at Rajkot, by the applicant – wife. 2. Heard Mr. K.P. Champaneri, learned advocate for the applicant. According to his submission, the applicant – wife has filed proceedings for maintenance at Rajkot, whereas proceedings for custody of a child is filed by the husband, that too, at Rajkot because of the territorial jurisdiction. He has further submitted that in any case, respondent – husband is attending both the proceedings at Rajkot, and therefore, the divorce proceedings filed by him at Vadodara may also be transferred to Family Court, Rajkot, so that all the three cases can be attended to by the respondent – husband on one day only. 2.1 He has further submitted that distance between Vadodara to Rajkot is approximately 300 kms one way and it would be most inconvenient for her to travel 600 kms per day, in case of attending or instructing her advocate as and when necessary, as it consumes at least two days for attending or instructing her advocate in the Court. 2.2 He has further submitted that she is having a child, aged about 10 years, who is also studying in school and it may be inconvenient for her to leave the child with parents, who are aged more than 70 years. 2.3 It is further submitted that the parents are having age-related medical problems, and therefore also, for a few hours it is most inconvenient for her to attend either Court proceeding at Vadodara or to instruct her advocate, who is engaged at Vadodara, and therefore, she has prayed for transfer of a case as aforesaid. 2.4 In support of his assertion, he has relied on a decision in the case of Sumita Singh v. Kumar Sanjay and another, reported in (2001) 10 SCC 41, for a proposition that the convenience of the wife must be looked into for transferring of a case.
2.4 In support of his assertion, he has relied on a decision in the case of Sumita Singh v. Kumar Sanjay and another, reported in (2001) 10 SCC 41, for a proposition that the convenience of the wife must be looked into for transferring of a case. 2.5 He has further relied on a decision in the case of Vaishali Shridhar Jagtap v. Shridhar Vishwanath Jagtap, reported in (2016) 14 SCC 356 , for a proposition that looking at the distance between two places, comparative hardship is more to the wife, and therefore, the Supreme Court thought it fit to transfer a case from one place to another at the instance of the wife. 2.6 He has further relied on a decision of this Court in the case of Sonal Shreyansh Vasa The Daughter of Gaurishankar L. v. Shreyansh Hitenbhai Vasa, reported in 2013 (3) GLR 2759 , referring para 8.6 as also paragraph Nos. 15, 16 and 19 thereof, and requested the Court to transfer the case from Vadodara to Rajkot. 3. As against that, Mr. Abhisst K. Thaker, learned advocate for the respondent – husband submitted that the applicant – wife has already appointed her advocate and it is not that on all adjourned dates, she is required to attend the Court. 3.1 He has further submitted that she can even pray for exemption as and when she cannot attend the Court, if at all, her presence is required. He has further submitted that grandparents are there to look after the child aged 10 years, and therefore, it is not that she cannot travel to attend the case at Vadodara. 3.2 He has further submitted that, as reflected from the affidavit-in-reply, she has travelled all alone to foreign countries and for that her passport may also be looked into, which is not denied by the applicant – wife. Therefore, it is submitted that if she can travel foreign countries all alone and there is no inconvenience to travel within India, that too, only 300 kms one way. 3.3 He has further submitted that the husband is ready to bear all the possible expenses for attending the Court at Vadodara either for travelling or for stay at Vadodara, and therefore, there is no reason to transfer a case from Vadodara to Rajkot.
3.3 He has further submitted that the husband is ready to bear all the possible expenses for attending the Court at Vadodara either for travelling or for stay at Vadodara, and therefore, there is no reason to transfer a case from Vadodara to Rajkot. 3.4 He has further submitted that her father, as reflected in the affidavit-in-reply to which there is no rejoinder filed, is a criminal offender and an FIR under Section 307 of the Indian Penal Code and other relevant Sections has been filed against him and applicant herself always used to say that she wants to be as far away from her father as possible. Therefore, also there is no need to transfer the case from Vadodara to Rajkot. 3.5 Mr. Abhisst K. Thaker, learned advocate for the respondent – husband, relied on a decision in the case of Gayatri Mohapatra v. Ashit Kumar Panda, reported in (2003) 11 SCC 731, for a proposition that when pleadings reflected that she has travelled from place to place for natal family business, inconvenience to travel cannot be a ground for transfer of a case. 3.6 Another decision of this Court in case of Deepika v. Wing Commander Abhishek Singh Tanwar, reported in 2022 SCC OnLine Guj 40, more particularly para 6, 7 and 8 thereof, for the very same proposition as referred to in earlier judgment, relying the case of Gayatri Mohapatra (supra) as also Anindita Das v. Srijit Das, reported in (2006) 09 SCC 197, for a proposition that the leniency shown to the wife for transfer of a case has been misused, and therefore, case should not be transferred from one State to another. Relying on both these decisions, it is submitted that the case is not required to be transferred from Vadodara to Rajkot. 4. Having heard the learned advocates for the appearing parties as also going through the material produced on record along with the affidavit-in-reply filed by the respondent – husband, it appears that there are at least two proceedings filed at Rajkot, whereas present suit is sought to be transferred from Vadodara to Rajkot. Respondent – husband is attending both the cases at Rajkot as custody proceedings filed by him at Rajkot because of the territorial jurisdiction and maintenance proceedings also.
Respondent – husband is attending both the cases at Rajkot as custody proceedings filed by him at Rajkot because of the territorial jurisdiction and maintenance proceedings also. As such, it would be in the interest of the husband that all the proceedings are attended to at one place instead of attending different proceedings at different places, that too, on different dates. It would be on the contrary in the interest of the husband that he is supposed to attend all the three cases on one day at one place alone instead of different proceedings on different dates and different places. 4.1 Coming to the hardship or inconvenience to travel merely because applicant – wife has travelled alone to foreign countries, would not be a criteria to refuse transfer of a case on the ground of inconvenience. Though the wife has engaged an advocate at Vadodara, she needs to either attend the Court on the day required or instruct her advocate and chalk out the defences available in accordance with law and for that, there may be a frequent visit at Vadodara if the advocate is engaged from Vadodara. At any rate, merely because she has travelled alone to foreign countries reflecting from her passport, as asserted in the reply, which is not answered by the applicant – wife, is no ground to refuse transfer of a case from Vadodara to Rajkot. 4.2 Another ground pleaded by the respondent – husband that the grandparents can look after the child, is again not a criteria, when child is of a tender age of 10 years and studying in school and leaving him for at least two days for attending the Court on a given date for an hour or two, would be most inconvenient, and therefore, that ground is also not a valid ground put forth by the respondent – husband objecting to the transfer of a case. 4.3 Another ground pleaded by the respondent – husband that he is ready to bear the cost of travelling and stay of the applicant – wife at Vadodara, as and when she is required to attend the Court, is also not valid as he may not show that grace to the wife and instead, he may spend that amount for himself attending Court at Rajkot instead of bearing the cost on behalf of the wife.
4.4 Looking at the decisions cited by both the sides, it is clear that inconvenience or hardship to the wife is the consideration for a transfer of a case. Even refusal of a transfer of a case from one State to another, as cited by the learned advocate for the respondent – husband in the case of Gayatri Mohapatra (supra) is on its own facts as she was a working women and in connection with her natal family business, she travelled a lot all around. In that peculiar facts, Supreme Court determined the said case, and therefore, it cannot be pressed into service, objecting to the transfer of a case. 4.5 Another decision in the case of Deepika (supra) referring to other Supreme Court decisions, including Gayatri Mohapatra (supra) and Anindita Das (supra), are referred to in the said decision and Anindita’s case was on peculiar facts contained therein, where Supreme Court was considering the misuse by the wife of a liberty granted to them in transferring cases interstates and in that peculiar circumstances, Supreme Court had ordered refusing to transfer the case. However, each case has to be considered on its own merit and no straight jacket formula can be determined either to grant or for refusal of transfer of a case from one place to another. 5. Having overall view of the circumstances and the case pleaded, I deem it fit to transfer the Family Suit No. 1216 of 2021 pending in the Family Court, Vadodara to the Family Court at Rajkot. In view thereof, this application is allowed. The aforesaid Family Suit No. 1216 of 2021 is ordered to be transferred from the Family Court, Vadodara to the Family Court at Rajkot.