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CALCUTTA HIGH COURT
Bibek Chaudhuri, J.
Sanchayita Deb (Guha) —Petitioner
versus
Susanta Deb —Respondent
CO No.3963 of 2018 with CO No.3964 of 2018
Decided on 10.1.2020
(A) Civil Procedure Code, 1908 – Order 24 – Applications for transfer of Matrimonial Suit – Inconvenience of wife should be treated as prime consideration in a proceeding under Section 24 of Code of Civil Procedure arising out of a matrimonial suit – After marriage petitioner was subjected to physical and mental torture by opposite party on standard of dowry given to petitioner at the time of their marriage from her paternal home – During subsistence of marriage with petitioner, it is alleged that opposite party has performed second marriage – Petitioner (Wife) has sought for transfer of matrimonial suit mainly on the ground of distance of Jalpaiguri from her paternal home at Durgapur where she is now residing with her child – It is stated by petitioner on oath that she has no income of her own – She is fully dependent upon her parents – Opposite party has not paid any maintenance for his wife and the son – Under such circumstances, petitioner will suffer inconvenience to travel Jalpaiguri from Durgapur which is situated at a distance of about 600 km away in one way – For benefit of the minor child, miscellaneous case ought to be transferred to Durgapur for hearing and disposal – Applications allowed. (Paras 7, 8, 12 and 13)
(B) Guardians and Wards Act, 1890 – Section 9 – Civil Procedure Code, 1908 – Order 24 – Guardianship application – When application is in respect of guardianship of person of a minor it is to be filed in court under whose territorial jurisdiction minor, ordinarily resides – If such application relates to property of minor there are two fora and applicant may choose either of two, namely, court under whose territorial jurisdiction minor ordinarily resides, or under whose territorial jurisdiction minor has property – In instant case, minor child of parties ordinarily resides at Durgapur with his mother – Court of Additional District Judge, Durgapur has jurisdiction under Section 9 of Guardians and Wards Act, 1890 to try miscellaneous case. (Paras 10 and 12)
Result: Applications allowed.
JUDGMENT
Bibek Chaudhuri, J.—Both the applications under Section 24 of the Code of Civil Procedure filed by the petitioner being the legally married wife of the opposite party were heard analogously and the applications are disposed of with the following order.
2. C.O 3964 of 2018 was filed by the wife/petitioner praying for transfer of Matrimonial Suit No.34 of 2018 pending before the learned District Judge at Jalpaiguri to the Court of the learned District Judge, Durgapur.
3. It is stated in the application that marriage of the petitioner was solemnized with the opposite party under Special Marriage Act on 14th February, 2004. In the said wedlock between the petitioner and opposite party, she gave birth to a male child on 11th June, 2006 who is now aged about 13 years. The said son of the parties is a student of Bidhan School, Durgapur in the District of Paschim Burdwan. After marriage the petitioner was subjected to physical and mental torture by the opposite party on the standard of dowry given to the petitioner at the time of their marriage from her paternal home. During the subsistence of marriage with the petitioner, it is alleged that the opposite party has performed a second marriage on 17th July, 2012. However the petitioner could not take any legal step against the opposite party/husband as he is a Assistant Sub-Inspector of Police and his elder brother is an influential political leader of the locality. That on 1st February, 2017, the petitioner, her husband and their minor child attended a marriage ceremony at Durgapur. The opposite party left Durgapur on 3rd February, 2017 leaving the petitioner and her child at her paternal home. On 12th December, 2017, the second wife of the opposite party came to the petitioner’s matrimonial home wearing some ornaments of the petitioner. When the petitioner demanded her ornaments back, the said second wife of the opposite party took up quarrel with her and physically assaulted her with a wooden bar causing injury on her person. On the same night the opposite party also tried to commit her murder by smoothering her with a pillow when he came to learn about the incident. On the very next day the opposite party drove the petitioner out of his house with their son and since then the petitioner has been residing at her paternal home at Durgapur. Subsequently the petitioner came to learn after receiving the summons that her husband has filed Matrimonial Suit No.34 of 2018 against her for dissolution of marriage by a decree of divorce before the learned District Judge, Jalpaiguri. It is submitted by the petitioner that she is unemployed having no income of her own. She has filed an application under Section 125 of the Code of Criminal Procedure against the opposite party but the opposite party failed and neglected to pay any maintenance for her and their minor child. It is further contended by the petitioner that distance between Durgapur and Jalpaiguri is more than 600 km and it is not financially possible for her to bear such expenses for the journey of the petitioner, from Durgapur to Jalpaiguri to contest the said suit. For this reason, the petitioner has prayed for transfer of the abovementioned matrimonial suit to the court of the learned Additional District Judge at Durgapur.
4. CO 3963 of 2018 is another application under Section 24 of the Code of Civil Procedure filed by the petitioner against the opposite party praying for transfer of Miscellaneous Case No.33 of 2017 pending before the learned District Judge at Jalpaiguri to the Court of learned Additional District Judge at Durgapur.
5. The aforesaid miscellaneous case was filed by the opposite party under Section 12 and 25(1) of the Guardians and Wards Act, 1890 read with Section 13 of the Hindu Minority and Guardianship Act, 1956 praying for custody of the minor child of the petitioner and the opposite party. It is alleged by the petitioner that the minor son of the parties has been residing at Durgapur under the care of
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