A notice was issued by this Court on 15.10.2020, which was duly served upon the respondent and the Learned advocate for the applicant had also filed the direct service affidavit. Thereafter, the matter was adjourned from time to time, however, the respondent didn’t put in an appearance. Accordingly, the Court was left with no other option, but to proceed with the matter.
The present application was filed by the applicant- wife under Section 24 of the CPC, 1908, seeking transfer of Family Suit No. 853 of 2019, which was filed under the provisions of Section 13 of the Hindu Marriage Act, 1955, before the Family Court at Surat to the Family Court at Bhavnagar.
Brief facts of the case were that the marriage of the applicant and respondent was solemnized on 18.02.2011, as per the Hindu rites and rituals. They had one child, aged 7 years. It was alleged that after a few months of their marriage, the respondent and his family members had tortured the applicant physically and mentally. The applicant, along with the child was forcibly removed from the house, and accordingly, since December 2018, the applicant was residing at her parental house with her minor child. Henceforth, the applicant had filed a Criminal Misc. Application No. 140 of 2019 under Section 125 of the CrPc, 1973 before the Family Court, Bhavnagar for maintenance. The applicant had further, applied the Domestic Violence Act before Learned Chief Judicial Magistrate, Bhavnagar.
Submissions before the Court
The Learned advocate Mr. Dhruv Desai for the applicant- wife had submitted that the respondent-husband had filed the presently referred suit before the Family Court, Surat. It was submitted that the distance between Surat and Bhavnagar was very long i.e., about 360-370 km. and in such circumstances, it would be very difficult for the applicant- wife to travel such a long distance with her minor child for attending the Court proceedings. Further, the applicant had no means of earning, whereas, the respondent was well-to-do. Furthermore, for attending the Court proceedings at Surat, the applicant would require a companion. Besides, the distance between both the places, the applicant would also have to incur expenses towards lodging and boarding.
The learned Advocate for the applicant further submitted that if the suit would be transferred to Bhavnagar, then in such case, the respondent won’t have to suffer many difficulties, as compared to the applicant. Further, the respondent belonged to a well-to-do family and hence, there won’t be any question of comparative hardship for him. Making the above submissions, it had been requested that the present application may be allowed as requested.
Consideration by Court
Regard was paid to the submissions advanced by the learned advocate for the applicant- wife, and it appeared that it would be difficult for the applicant to travel about 370 km., from Bhavnagar to Surat. Further, it was considered that the applicant will have to travel this long distance with her minor child. Moreover, the applicant had applied to maintenance and another application under the Domestic Violence Act at the concerned Courts at Bhavnagar, and accordingly, the respondent would have to travel to Bhavnagar for attending those proceedings. Further, the Court kept in view that the Learned advocate for the applicant- wife had also stated that there would be no case of comparative hardship. Hence, in such circumstances, the Court opined that the matter required favorable consideration. Even the respondent had made no appearance despite sufficient opportunity being given to him and when the exercise of discretion under Section 24 of the CPC was commonplace, the grounds were found to be genuine and convincing.
This Court had taken the assistance of similar issues been adjudicated earlier, as in the case of Sumita Singh v/s Kumar Sanjay AIR 2002 SC 36 and in the case of Minesh Rajnikant Dalal v/s. Avani Minesh Dalal 2002 (2) GLR 1685.
In light of the submissions put forth by the learned advocate for the applicant, the Court allowed the present application. The Family Suit No. 853 of 2019, pending before the Family Court, Surat was directed to be transferred to the Family Court, Bhavnagar. It was directed that upon transfer, the Family Court, Bhavnagar shall inform the parties and proceed with the present matter by the law.
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