Whether Reporters of Local Papers may be allowed to see the judgment?
NO 2 To be referred to the Reporter or not?
NO 3 Whether their Lordships wish to see the fair copy of the judgment?
NO 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?
NO 5 Whether it is to be circulated to the civil judge?
NO ==================================== JAYA D/O GOPALDAS BACHANI W/O PRAKASH ROCHIRAM MULCHANDANI....Applicant(s) Versus PRAKASH ROCHIRAM MULCHANDANI....Opponent(s) ==================================== Appearance:
MR HASIT DILIP DAVE, ADVOCATE for the Applicant(s) No. 1 MR PM DAVE, ADVOCATE for the Opponent(s) No. 1 RULE SERVED for the Opponent(s) No. 1 ==================================== CORAM:
HONOURABLE MR.JUSTICE G.B.SHAH Date : 05/03/2013 CAV JUDGEMNT
1. Present application, under Section 24 of the Code of Civil Procedure, 1908, has been filed by the applicant for transfer of Hindu Marriage Petition No. 118 of 2011 ( H.M.P. for short), filed by the respondent herein under Section 13 of the Hindu Marriage Act, 1955 for Divorce in the Family Court, Godhra to the Family Court at Vadodara.
2. In response to the Rule issued by this Court, learned advocate Mr. P. M. Dave has appeared on behalf of the respondent and has filed affidavit in reply on behalf of the respondent.
3. Heard, the learned advocate Mr. Hasit Dave for the applicant and learned advocate Mr. P. M. Dave for the respondent.
3.1 The learned advocate for the applicant submitted that the applicant and the respondent herein are husband and wife. Out of the said wedlock, they are having two minor children, one is aged about 13 years and other is aged about 08 years. It is alleged by the applicant that on mere suspicion and doubt, the respondent - husband used to beat the applicant and was harassing her alleging adultery. It is further alleged by the applicant that due to such unbearable torture and harassment by the respondent herein, she had to leave her matrimonial home along with two minor children. The learned advocate for the applicant submitted that the present application has been preferred mainly on the ground that the applicant herein the wife, is a poor lady, having no source of income, residing at her parental home with her parents along with her two minor children. It is further submitted by the learned advocate for the applicant that the respondent has filed the H.M.P. in question, totally on false and frivolous grounds. Moreover, the distance between Godhra and Vadodara, to and fro, is about 150 km. and the applicant herein, being a lady, having no source of income and having minor children, it would be very difficult for her to commute from Vadodara to Godhra. Further, it is submitted that, both the children are studying and the applicant will have to take them with her for attending the aforesaid proceeding, as there is nobody in the home to look after them. Her parents are aged. The learned advocate for the applicant submitted that if the aforesaid Hindu Marriage Petition is not transferred as prayed for, the applicant may have to suffer much, economically, physically and mentally, vice versa, if the same is transferred, the respondent may not have to suffer much in comparison to the present applicant. And hence, the learned advocate for the applicant prayed to allow the present application.
3.2 Per contra, learned advocate Mr. P. M.
Dave for the respondent, with all vehemence at his command, has opposed the present application. The learned advocate for the respondent has mainly submitted that, earlier also, the present applicant had filed the Misc. Civil Application being No. 2572 of 2011 for the same cause, which was dismissed by the Court as the learned advocate for the applicant was constantly remaining absent. Moreover, the learned advocate for the respondent submitted that, the stage of filing the Reply by the present applicant in H.M.P. No. 118 of 2011 has already been closed and the trial is yet to commence. The learned advocate for the respondent invited attention of the Court to Page 30 the Acknowledgment issued by the Income-tax Department and submitted that, if the said document be perused carefully, it is clear that the submission made by the learned advocate for the applicant that the applicant is not earning or have no source of income, is nothing but devoid of merits. Moreover, the fact that, till date the applicant herein has not initiated any proceedings for maintenance against the present respondent, is also suggestive of the fact that she does not have any financial difficulties, as narrated by her. The learned advocate for the respondent then submitted that it is not in dispute that the distance between Godhra and Vadodara is about 150 km., to and fro, but the respondent herein is ready and willing to bear the expenses, that may be incurred by the applicant, as deemed just and proper by this Court. He also submitted that, so far as care which will be required to be taken of two minor children in absence of the applicant is concerned, the father of the applicant can look after the children. In support of his submissions, the learned advocate for the respondent has placed reliance on the decision of the Hon ble the Apex Court in Reema Sethi Vs. Deepak Sethi, reported in 2005 (0) GLHEL-SC 36260, the decision in Preeti Sharma Vs. Manjit Sharma, reported in 2005 (0) GLHEL-SC 36235, and the decision in Anindita Das Vs. Srijit Das, reported in 2005 (0) GLHEL-SC 38902 and submitted that, present application may be dismissed.
4. I have heard the learned advocates for the parties and also considered the papers on record. I have also perused the aforesaid decisions cited by the learned advocate for the respondent herein. This Court is of the view that as laid down by the Hon ble the Apex Court in Sumita Singh Vs. Kumar Sanjay and Another, reported in AIR 2002 Supreme Court 396 that in the matters of transfer, it is the convenience and the hardships, that may cause to the applicant wife is to be looked into. Here, in the case on hand, admittedly, the respondent is ready and willing to bear the expenses that may be incurred by the applicant, however, that cannot be the sole ground for rejection of the present application. In the case on hand, the applicant is a lady, whose two minor children are residing with her and they are also studying. Besides, the aspect of distance between the two cities i.e. Godhra and Vadodara of 150 km., to and fro, cannot be overlooked. This Court is of the considered opinion that, in the circumstances, the inconvenience and the hardships, that may cause to the applicant, will certainly be more, whereas, the respondent may not have to suffer much hardships and inconvenience. Hence, in my view, present application deserves to be allowed. So far as, the decisions on which the learned advocate for the respondent has put reliance are concerned, so far as decisions in Reema Sethi Vs. Deepak Sethi, reported in 2005 (0) GLHEL-SC 36260 and in Preeti Sharma Vs. Manjit Sharma, reported in 2005 (0) GLHEL-SC 36235 are concerned, the facts of the cases were somewhat different than the case on hand. In the said cases, it appears that no children were there to the concerned parties and accordingly, the order was passed. Hence, the same are not applicable to the case on hand, as the present applicant is having two minor children and the father of the applicant, who is aged 70 years, practically it is not possible for him to look after the children in absence of the applicant. So far as the decision in Preeti Sharma Vs. Manjit Sharma, reported in 2005 (0) GLHEL-SC 36235 is concerned, the same is also not applicable to the case on hand, as, as observed by the Hon ble the Apex Court, each petition should be considered on its own merits, and considering the said ratio, in the case on hand, the facts do not favour the respondent herein, as aforesaid. So far as earlier Misc. Civil Application being No. 2572 of 2011, which was dismissed as the learned advocate for the applicant had remained absent and now, for the same cause, the submission to the effect that this second Misc. Civil Application is not maintainable is concerned, it is the fact that after the said dismissal order, the applicant herein had preferred Misc. Civil Application No. 509 of 2012 and vide order dated 24/02/2012, the Court concerned has clarified that for the fault of the learned advocate for the applicant, the applicant should not be made to suffer and further observed that dismissal of the said application shall not in any manner be treated as res judicata thereby, restraining the applicant from filing another application and hence, there appears no substance in the above-referred submissions made by the learned advocate for the respondent and hence, in my view, this second application, on the same case, is maintainable.
4.1 So far as Acknowledgment Receipt issued by the Income-tax Department at page 30 is concerned, it appears that the said form was received on 04/06/2010 by Income-tax Office, Ward-I, Godhra. According to the learned advocate for the applicant when the applicant was staying with respondent at Godhra, she must have been earning but right now, the two children are residing with the applicant and respondent is not there to share the responsibility and accordingly, she is not earning. There appears force in the said submission.
5. In above backdrop, present application deserves to be allowed and is accordingly allowed. Proceedings of H.M.P. No. 118 of 2011, filed by the respondent herein in the Family Court at Godhra is ordered to be transferred to the Family Court at Vadodara. The Principal Judge, Family Court, Godhra is directed to send the R&P of H.M.P. No. 118 of 2011 to the Family Court at Vadodara, forthwith.
[ G. B. Shah, J. ] hiren Page 9 of 9