MCA/1781/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR TRANSFER No. 1781 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 ? ========================================================= MANISHABEN D/O NARENDRABHAI BHOGILAL TRIVEDI - Applicant(s) Versus PREMAL HARIHAR RAI THAKKAR - Opponent(s) ========================================================= Appearance : MR ASHISH M DAGLI for Applicant(s) : 1, MR HARIHARRAI THAKAR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 08/08/2008 ORAL JUDGMENT 1. Present application is filed by the wife Manishaben d/o. Narendrabhai Bhogilal Traivedi, under MCA/1781/2008 2/7 JUDGMENT Section 24 of the Code of Civil Procedure for an appropriate order of transferring the H.M.P. Case No. 26 of 2008 pending in the Court of learned Additional Civil Judge, Anand to Competent Court at Morbi. 2. Applicant wife is residing at Morbi District Rajkot. It is the case on behalf of the applicant that the marriage of the petitioner was solemnized on 3.12.1998 and after the marriage there was harassment caused to the petitioner physically and mentally by the family members of the respondent husband and inspite of the harassment, the petitioner continued to reside and even there was compromise and assurance was given that the petitioner will not put to any further harassment, however such harassment continued which compelled the petitioner to file an application being Criminal Miscellaneous Application No. 116 of 2008 before the learned Additional Chief Judicial Magistrate, Morbi under Section 125 of the Code of Criminal Procedure for seeking maintenance. The applicant was driven out and is compelled to stay at Morbi at her parental house. It is also the case on behalf of the applicant that she has also filed a MCA/1781/2008 3/7 JUDGMENT complaint being C.R. No. 3019 of 2008 before the Morbi Police Station for the offences punishable under Sections 498(A), 504, 506(2) and under Sections 3 and 4 of the Dowry Prohibition Act. That, thereafter as a counter blast and with a view to harass the petitioner, respondent-husband whose father is lawyer has filed H.M.P. No. 26 of 2008 in the Court of learned Senior Civil Judge, Anand under Sections 12 & 13 of the Hindu Marriage Act. It is the case on behalf of the applicant that petitioner is a lady and looking to the distance between Morbi and Anand, it will be very much inconvenient for the petitioner to attend the proceedings at Anand on every date of adjournments. It is submitted that the applicant has no other independent income even to meet with the expenditure of traveling to Anand on every date of adjournments. It is submitted that the petitioner is residing with his brother and therefore, it is requested to transfer the proceedings from Anand to Morbi. Shri Dagli, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble the Supreme Court in the case of Sumita Singh Vs. Kumar MCA/1781/2008 4/7 JUDGMENT Sanjay reported in AIR 2002 SC 396. In support of his submission to transfer the proceedings from the Court at Anand to Court at Morbi. 3. The application is opposed by the respondent- husband and affidavit-in reply is filed opposing the present application. It is to be noted that the respondent-husband is represented by learned advocate Shri Hariharrai Thakar, who is the father of respondent husband. It is submitted that no cause of action has arisen within the jurisdiction of the Morbi Court. It is further submitted that the income of the respondent husband is hardly Rs. 1100/- to Rs. 1200/- per month from Mobil repairing and casual seasonal Video shootings. It is further submitted that the father of the petitioner is a Senior Mechanical Assistant in State Transport Corporation and is allowed to travel free with any of his family members with his identity card and the father of the respondent is a retired Government Pensioner, therefore, balance of hardship and loss of money weighs more in favour of the respondent than the petitioner, therefore, it is requested to dismiss the present application. MCA/1781/2008 5/7 JUDGMENT 4. Heard the learned advocates for the respective parties. 5. At the outset, it is required to be noted that the respondent and their advocate who is father of the respondent has tried to mislead the Court by suggesting that father of the respondent is a retired Government Pensioner. As stated above, respondent husband is represented through advocate Shri Hariharrai Thaker who is father of the respondent husband and in the affidavit in reply in paragraph 8, it is submitted that father of the respondent is retired Government Pensioner but has deliberately not stated that father of the respondent is lawyer. Thus, the respondent-husband and his advocate has tried to mislead the Court and has not stated the correct facts. The aforesaid was stated by the respondent- husband to consider his financial status and his economic position. 6. It is required to be noted that and it cannot be disputed that the applicant wife is residing at present at Morbi District Rajkot and the proceedings are initiated by the respondent-husband in the Court MCA/1781/2008 6/7 JUDGMENT at Anand possibly because the father of the respondent-husband is practicing at Anand and there is long distance between Morbi and Anand. Applicant is a lady and she has no other independent income and it is alleged that she is compelled to stay at her parental house at Morbi. Prior to the filing of the proceedings at Anand, the proceedings are already initiated by the applicant wife at Morbi. Looking to the distance between Morbi and Anand it will be more,inconvenient to the applicant lady to attend the proceedings at Anand on every date of adjournments. It appears that the applicant has no other independent income and, therefore, it will not be possible for the applicant to meet with the traveling expenditure and other expenses while attending proceedings at Anand on every date of adjournments. The respondent-husband is alleged to be doing computer job work, Vediography work and Photography and his father is a lawyer. Looking to the above, balance of convenience will be in favour of the applicant rather than respondent-husband. As held by the Hon'ble Supreme Court in the case of Sumita Singh (supra) in a matrimonial matter while considering Section 24 of the Code of Civil Procedure convenience of wife is required to be considered. Under the MCA/1781/2008 7/7 JUDGMENT circumstances, the present application deserves to be allowed. 7. For the reasons stated above, present application is allowed. H.M.P. Case No. 26 of 20089 pending in the Court of learned Senior Civil Judge, Anand is ordered to be transferred to the Court at Morbi having jurisdiction. Rule is made absolute accordingly. In the facts and circumstances, there shall be no order as to cost. ( M.R.SHAH,J) Kaushik