Home > Judgement > HC: Transfer petition should be allowed only in exceptional circumstances, wifes transfer petition dismissed

HC: Transfer petition should be allowed only in exceptional circumstances, wifes transfer petition dismissed

1213/2011 on 16 May, 2011
Author: Tapan Kumar Dutt

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2 16.05.11

C.O. 1213 of 2011.

Mr. Hiranmoy Bhattacharjee

Mr. Pradip Ray

Mr. Ujjal Ray … For the Petitioner. The learned Advocate for the wife/petitioner files a supplementary affidavit today.

Let the same be kept on record.

In the present application the wife/petitioner has prayed for transfer of Matrimonial Suit No. 2170 of 2010 pending in the Court of the learned District Judge, Alipore to the Court of the learned Additional District Judge, Barrackpore. The said Matrimonial Suit has been filed by the husband/opposite party against the wife/petitioner.

It appears that at the instance of the wife/petitioner proceedings under Section 498A I.P.C and also proceedings under Section 125 Cr.P.C are pending in the learned Courts concerned at Barrackpore. It also appears from the Supplementary Affidavit that the wife/petitioner has to attend the School of her child S.D.

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everyday and it takes about one hour to cover the distance from her residence to the School. The learned Advocate for the wife/petitioner submits that there is no one to escort the wife/petitioner to the learned Court where the Matrimonial Suit is pending. The said learned Advocate cited a decision reported at 2005(13) SCC 158. It appears from the said reports that the wife in the said case was expected to go from Rohtas to Ujjain which involved huge expenses. Obviously, the distance between Rohtas and Ujjain can not be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2005(13) SCC 413. It appears from the said reports that the Hon’ble Court found in the said case that most of the witnesses who were to be examined on behalf of the respondents in the said case were residents of Muzaffarpur, Bihar and in such circumstances the transfer petition was allowed by directing the Matrimonial Case concerned in the said case to be transferred to Muzaffarpur.

The said learned Advocate cited another 3

decision reported at 2000(9) SCC 255. The distance involved in the said reports was the distance between Bombay and Delhi and in such circumstances the Hon’ble Court was pleased to transfer the Matrimonial Case from the Court concerned at Bombay to the Court concerned at Delhi. The distance between Bombay and Delhi cannot be equated with the distance between Khardah and Alipore. The next decision cited by the said learned Advocate is the one reported at 2000(9) S.C.C. 355. The distance involved in the said reports was the distance between Jaipur and Bombay and in those circumstances the Hon’ble Court found that it will be difficult for the wife in the said case to go all the way from Jaipur to Bombay. Again, the distance between Jaipur and Bombay cannot be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2000(9) SCC 453. The distance involved in the said reports was the distance between Hyderabad and Bangalore. It also appears that in spite of notice none had appeared to contest the application filed by the wife/petitioner. It further appears that a petition 4

for restitution of conjugal rights was pending before the learned Family Court at Bangalore in the said case. In such circumstances, the Hon’ble Court transferred the divorce petition concerned from the learned Court concerned at Hyderabad to the Family Court at Bangalore. The distance between Hyderabad and Bangalore cannot be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2008(17) SCC 482. The distance involved in the said reports was the distance between Tripura, Agartala and Howrah, West Bengal and such distance cannot be equated with the distance between Khardah and Alipore.

The said learned Advocate cited another decision reported at 2009(16) S.C.C. 188, where from it appears that the distance involved in the said reports was about 900 k.ms. and there was none in the family of the wife to escort her during her journey from Mumbai to Indore. Obviously, the distance of 900 k.ms. cannot be equated with the distance between Khardah and Alipore. That apart, the petitioner has stated in her 5

affidavit that she has to attend the School of her child which is one hour distance (one way) and it does not appear from the said affidavit that any one has to escort her for the purpose of such journey. She has alleged that it takes two hours forty five minutes to travel from her residence to the learned Court concerned at Alipore. Even if it is assumed, for the sake of argument, that it really takes two hours forty five minutes for the wife/petitioner to cover the distance between her residence and the Alipore Court concerned, this Court does not see any reason as to why she cannot travel such distance without any escort since she already has to travel a distance of about two hours whenever her child’s School is open and such travelling is done by herself alone. The aforesaid decisions cited on behalf of the wife/petitioner do not help the wife/petitioner in the facts and circumstances of the present case. In 2006(9) S.C.C. 197 which was also cited by the learned Advocate for the wife/petitioner, the Hon’ble Supreme Court was pleased to observe, inter alia, as follows:-

“3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of 6

transfer petitioners are filed by women taking advantage of the leniency shown by this Court. On an average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women.

4. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met.

5. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out.”

It is needless to say that if the wife/petitioner has any difficulty in meeting her expenses for attending the Matrimonial Suit concerned, the wife/petitioner will be entitled to make an appropriate application before the learned Trial Court for appropriate directions upon the husband/opposite party for meeting her expenses for attending the said Matrimonial Suit and if such application is made the learned Trial Court will have to 7

decide the same in accordance with law. This Court is of the view that the distance between Khardah and Alipore is not at all a formidable distance and on the days when the wife/petitioner will be required to attend the said Matrimonial Suit, the wife/petitioner will have to make necessary arrangements for taking proper care of her child in case the child has to attend his School on the said days.

Orders under Section 24 C.P.C., seeking transfer of proceedings, should not be made as a general rule but such orders of transfer may be required to be passed in exceptional circumstances only. This Court does not find any merit in the application under Section 24 C.P.C which is dismissed. Urgent xerox certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities. (Tapan Kumar Dutt, J.)

http://indiankanoon.org/doc/612024/

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Categories: Judgement
  1. November 27, 2011 at 3:56 am

    show exact citation of the above case

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