MCA/1367/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR TRANSFER No. 1367 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = KAMINIBEN D/O KANTILAL BOSIYA & W/O KAUSHIKKUMAR MAGANBHAI - Applicant(s) Versus KAUSHIKKUMAR MAGANLAL MANVAR - Opponent(s) ========================================= = Appearance : MR CL SONI for Applicant(s) : 1, NOTICE SERVED for Opponent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 31/07/2008 ORAL JUDGMENT 1. The present application is filed by the applicant, MCA/1367/2008 2/4 JUDGMENT Kaminiben, wife of the opponent-husband under Section 24 of the Civil Procedure Code for appropriate writ or order to transfer the proceedings of H.M.P No. 166/2008, pending in the Court of learned 13th Additional Senior Civil Judge, Vadodara to the learned Additional Senior Civil Judge, Deesa. 2. Though served, nobody appears on behalf of the opponent-husband. 3. It is the contention on behalf of the applicant that the marriage of the applicant and the opponent was solemnised on 24/04/2002. After some time of marriage, the opponent- husband started ill treating the applicant and the applicant was driven out of the matrimonial home and she was compelled to stay with her parents at Deesa. It is submitted that the applicant had filed Criminal Miscellaneous Application No. 294/2005 for maintenance under Section 125 of the Code of Criminal Procedure on 06/10/2005 in the Court of learned Judicial Magistrate First Class, Deesa. The opponent-husband had contested the said application and the learned Judicial Magistrate First Class had partly allowed the said application and ordered the opponent to pay Rs. 1500/- per month by way of maintenance. It is submitted that as on today arrears of more than Rs. 44,000/- is still remaining to be paid by the opponent for which the applicant had filed an application under Section 125(3) of the Code of Criminal Procedure, being Criminal Revision Application No. 24/2008. It is submitted that thereafter with a view to harass the applicant, and as a counter blast, the opponent-husband filed a divorce petition, being H.M.P. No. 166/2008 in the Court of learned 13th Additional Senior Civil Judge, Vadodara. It appears that the MCA/1367/2008 3/4 JUDGMENT applicant is staying with her father and she is totally dependent upon him. The distance between Deesa and Vadodara is approximately about 300 kms and the journey takes atleast six hours. It is submitted that the applicant, being a lady, would be put to enormous difficulty, if she is required to attend the Court proceedings at Vadodara. It is submitted that it will not be convenient for the applicant to attend the proceedings at Vadodara on each and every adjournment physically as well as financially. 4. Learned advocate appearing on behalf of the applicant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of SUMITA SINGH Vs KUMAR SANJAY reported in AIR 2002 SC 396. It is submitted that as observed by the Hon'ble Supreme Court, it is the convenience of the wife that must be looked at. 5. It appears that the applicant-wife is residing at Deesa with her old father and the opponent-husband has initiated the proceedings, being H.M.P. No. 166/2008, at Vadodara. The distance between Deesa and Vadodara is approximately 300 kms and it takes six hours to reach Vadodara from Deesa. The applicant is solely dependent upon her father and she has no independent income for livelihood. Thus, it will be inconvenient to the applicant-wife to attend the proceedings at Vadodara on each and every adjournment physically as well as financially. As held by the Hon'ble Supreme Court in the case of SUMITA SINGH Vs KUMAR SANJAY (supra), in the matrimonial proceedings, under Section 24 of the Civil Procedure Code, it is the convenience of the wife that must be looked at. MCA/1367/2008 4/4 JUDGMENT 6. For the reasons stated hereinabove, the present Miscellaneous Civil Application is required to be allowed. H.M.P No. 166/2008, pending in the Court of learned 13th Additional Senior Civil Judge, Vadodara is hereby ordered to be transferred to the learned Additional Senior Civil Judge, Deesa. With this, the present Miscellaneous Civil Application is allowed. Rule made absolute accordingly. There shall be no order as to costs. (M.R. SHAH, J.) siji