Mca No. 373 of 2008 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 10/07/2008 ORAL JUDGMENT MCA/373/2008 JUDGMENT

The present application under Section 24 of the Civil Procedure Code is filed by the applicant-wife for transferring H.M.P. No. 29/2008 from learned Civil Jude, (Senior Division), Vadodara to the learned Civil Judge (Senior Division), Nadiad, District Kheda.

It is the contention on behalf of the applicant that the applicant is residing at village Shahpura, Taluka Thasra, District Kheda. After she delivered baby child in the year 2003, the opponent-husband and his family members started harassing the applicant and she was driven out from her husband's place and, therefore, she has preferred an application under Section 125 of the Civil Procedure Code before the learned Judge, Thasra for maintenance. It is further submitted in the said application that she has also submitted an application for interim maintenance and in the said proceedings, summons has been served upon the opponent. Thereafter, the applicant had preferred another application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the learned Principal Civil Judge (Senior division), Nadiad, being H.M.P. No. 129/2007. It is submitted that with a view to harass the applicant, the opponent-husband has subsequently preferred an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in the court of learned Civil Judge (Senior Division), Vadodara, being H.M.P. No. 29/2008. It is submitted that she is having two minor daughters and she is residing at village Shahpura, Taluka Thasra, District Kheda and only with a view to harass the applicant, the aforesaid proceedings are initiated by the opponent at Vadodara. It is submitted that being a lady it is not possible for the applicant to go to Vadodara every time and MCA/373/2008 JUDGMENT even financially, it is not possible for the applicant to meet with the expenses for traveling to Vadodara on each date. It is requested to transfer the aforesaid proceedings to the Nadiad Court. Learned advocate appearing on behalf of the applicant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of SUMITA SINGH Vs. KUMAR SANJAY reported in AIR 2002 SC 396.

Though served, nobody appears on behalf of the opponent. Notice for final disposal had been issued by the learned Single Judge as far back on 19/02/2008 making it returnable on 13/03/2008 and, thereafter, on more than five occasions, the application has been adjourned.

It appears that the applicant is residing at village Shahpura, Taluka Thasra, District Kheda at her parents house and some proceedings are already initiated by the applicant at Thasra and in the Court of learned Principal Civil Judge (Senior Division), Nadiad under the Hindu Marriage Act. It appears that subsequently, the opponent-husband has filed H.M.P. No. 29/2008 in the Court of learned Civil Judge (Senior Division), Vadodara for restitution of conjugal rights under the Hindu Marriage Act. It is averred in the application that the applicant is a lady and she has got two minor daughters and she is residing at village Shahpura, Taluka Thasra, District Kheda and it is not possible for the applicant-wife to go to Vadodara every time on each adjournment and financially also it is not possible for the applicant to meet with the expenses. While dealing with Section 24 of the Civil Procedure Code in the matrimonial proceedings, the Hon'ble Supreme Court in the case of SUMITA SINGH Vs. KUMAR SANJAY (Supra) has observed MCA/373/2008 JUDGMENT that it is the convenience of the wife that must be looked at.

Under the circumstances and considering the facts narrated above, which are sufficient to make the transfer application absolute, the present Miscellaneous Civil Application is required to be allowed.