MCA/26/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD MISC.CIVIL APPLICATION - FOR TRANSFER No. 26 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 ? ========================================================= GAYATRIBEN JIGNESHBHAI JIVANI - Applicant(s) Versus JIGNESH KANTILAL JIVANI - Opponent(s) ========================================================= Appearance : MR MB GANDHI for Applicant(s) : 1, MR HARSHIT S TOLIA for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 31/07/2008 ORAL JUDGMENT 1. RULE. Mr.Harshit Tolia, learned advocate waives the service of notice of admission on behalf of the respondent. 2. With the consent of the learned advocate appearing on MCA/26/2008 2/6 JUDGMENT behalf of the respective parties, the matter is taken up for final hearing today. 3. Present petition under sec.24 of the Code of Civil Procedure is filed by the petitioner – wife for an appropriate order to transfer Hindu Marriage Petition No. 128 of 2006 from the court of learned Civil Judge (Senior Division), Rajkot to the Family Court at Ahmedabad. 4. Heard Mr.M.B. Gandhi, learned advocate appearing on behalf of the petitioner - wife and Mr.Harshit Tolia, learned advocate appearing on behalf of the respondent - husband. 5. It is the contention on behalf of the petitioner that she has married with the respondent husband on 20/2/2005 and after marriage, she started residing at her matrimonial house. However, thereafter dispute started due to family grudge and the family members of the respondent husband started harassing the petitioner, initially in absence of the respondent husband, however, subsequently, the respondent husband also started harassing the petitioner. It is submitted that thereafter, the petitioner was constrained to file an application under sec.125 of the Code of Criminal Procedure in the Family Court at Ahmedabad being Criminal Misc. Application MCA/26/2008 3/6 JUDGMENT No.1775 of 2006. It is submitted that as a counter-blast, after a period of one year of the filing of the application under sec.125 of the Code of Criminal Procedure, the respondent with a view to harass the petitioner, has filed Hindu Marriage Petition No. 128 of 2006 in the court of learned Civil Judge (S.D.), Rajkot on 1/9/2007 under sec.13 of the Hindu Marriage Act. It is submitted that the petitioner is residing at Ahmedabad and had gone to attend the proceedings at Rajkot for 3 to 4 times with her father, but her father is also aged person and it will not be possible for her father to give company to the petitioner on every date of adjournment and it is inconvenient for the petitioner being lady to travel alone to Rajkot to attend the proceedings on every date of adjournment. It is submitted that financially also it is not possible for the petitioner to meet with the expenditure of travelling to Rajkot on every date of adjournment, as she has no independent source of income. It is also submitted that even otherwise, the respondent is residing at Vadodara and the distance between Vadodara and Ahmedabad is about 100 KMs as against that the distance between the Vadodara and Rajkot is about 300 KMs and therefore, it will be more convenient for the respondent MCA/26/2008 4/6 JUDGMENT to attend the proceedings at Ahmedabad. Submitting accordingly, it is requested to allow the present petition and transfer the proceedings from Rajkot to Ahmedabad. The learned advocate appearing on behalf of the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Sumita Singh V/s. Kumar Sanjay and another, reported in AIR 2002 S.C. 396, in support of his prayer to allow the present petition. 6. The application is opposed by Mr.Harshit Tolia, the learned advocate appearing on behalf of the respondent by submitting that in the facts and circumstances of the case, the proceedings are not required to be transferred from the court at Rajkot to Family Court at Ahmedabad. 7. It is not disputed that the petitioner is residing at her parental house after she was driven out from her matrimonial house. It is the case on behalf of the petitioner that she initially she has initiated proceedings under sec.125 of the Code of Criminal Procedure in the Family Court at Ahmedabad and thereafter, as a counter- blast the respondent husband filed Hindu Marriage Petition No. 128 of 2006 in the court of learned Civil Judge MCA/26/2008 5/6 JUDGMENT (SD), Rajkot. It appears that the respondent is serving at Vadodara and the proceedings have been initiated by him in Rajkot Court. It is the case on behalf of the petitioner wife that it will cause a lot of inconvenience to her being a lady to go to Rajkot all alone on every date of adjournment. It is also the case on behalf of the petitioner that she has no independent source of income for livelihood and her father is getting meager amount of pension. Considering the above it appears that it will cause more inconvenience to the petitioner wife to go to Rajkot to attend the proceedings on every date of adjournment physically as well as financially. As stated above, the respondent husband is working at Vadodara and the proceedings of Hindu Marriage Petition No. 128 of 2006 are filed at Rajkot. As held by the Hon'ble Supreme Court in the case of Sumita Singh (supra), in a matrimonial proceedings and while considering sec.24 of the Code of Civil Procedure, convenience of the wife is required to be considered. 8. For the reasons stated above, the petition succeeds. It is hereby ordered to transfer Hindu Marriage Petition No. 128 of 2006 from the court of learned Civil Judge (S.D.), MCA/26/2008 6/6 JUDGMENT Rajkot to the Family Court at Ahmedabad. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik