Minakshi Behera vs Avisek Pradhan

S.K. Mishra, J.

The present transfer petition has been preferred by the Petitioner-wife under Section 24 of the Code of Civil Procedure, for transfer of the proceeding in C.P. No.507 of 2026, pending in the Court of learned Judge, Family Court, Cuttack, to the Court of learned Judge, Family Court, Jagatsinghpur, on the grounds detailed in the transfer petition.

Being noticed, the Opposite Party-husband has appeared and filed an objection opposing to such prayer for transfer.

Since pleadings are complete, on consent of learned Counsel for both the parties, the transfer petition is taken up for hearing and disposal at the stage of admission.

Heard learned Counsel for the parties.

Reiterating the grounds urged in the transfer petition, learned Counsel for the Petitioner submits, the Petitioner is presently serving as an Assistant Teacher at Baladev U.P. School, Godhana, under Patakura Police Station in the district of Kendrapara. However, she is residing at village Bachharai, which also comes under Patakura Police Station in the district of Kendrapara. Though the application under Section 13(1)(ib) of the Hindu Marriage Act, 1955 is not maintainable before the learned Judge, Family Court, Cuttack, so far as territorial jurisdiction is concerned, the said application under Section 13(1)(ib) has been intentionally filed before the learned Judge, Family Court, Cuttack, with an ulterior motive to harass her. He further submits, the Opposite Party belongs to village Maligaon under Nemalo Police Station in the district of Cuttack and is presently serving as a Fireman at Marshaghai Fire Station, Marshaghai, in the district of Kendrapara.

Learned Counsel for the Petitioner further submits, the Petitioner is residing at Bachharai along with her minor daughter and mother. Apart from her old and ailing father, who is a senior citizen and suffering from chronic illness; there is no male member in her family to accompany her to attend the day-to-day proceedings at Cuttack, which is about 50 Kms. away from her residence.

Per contra, learned Counsel for the Opposite Party-husband vehemently opposes to such prayer for transfer on the ground that the Opposite Party-husband, preferred an application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal right before the learned Judge, Family Court, Kendrapara, which was registered as C.P. No.343 of 2022. Being noticed, the present Petitioner, who was the Opposite Party in the said proceeding appeared and contest the said case. Despite passing a decree directing the present Petitioner to join the Opposite Party-husband, she did not act in terms of the said decree. Rather, she preferred MATA No.216 of 2024, which was ultimately dismissed by this Court, as she refused to join the present Opposite Party-husband. Hence, the Opposite Party-husband was forced to file an application under Section 13(1)(ib) for divorce before the learned Judge, Family Court, Cuttack, as the Opposite Party-husband is a permanent resident of village Maligaon, PS: Nemalo in the district of Cuttack.

Learned Counsel for the Opposite Party further submits, he has no objection for transfer of the proceeding in C.P. No.507 of 2025 from the Court of learned Judge, Family Court, Cuttack to the Court of learned Judge, Family Court, Kendrapara, as the distance of Godhana, where the Petitioner-wife is serving at present, would be around 10 Kms. from the Court of learned Judge, Family Court, Kendrapara and the distance of Marshaghai, where the present Opposite Party-husband is serving at present, would be around 17 Kms. from the Court of learned Judge, Family Court, Kendrapara. He further submits, from Godhana to Kendrapara, the distance would be around 10 Kms., whereas from Godhana to Jagatsinghpur, the distance would be around 17 Kms. Hence, it would be convenient for both the parties, if the proceeding in C.P. No.507 of 2025 is transferred from the Court of learned Judge, Family Court, Cuttack to the Court of learned Judge, Family Court, Kendrapara.

Law is well settled that while considering application for transfer of matrimonial proceedings, convenience of wife must be looked at. In N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha, reported in 2022 SCC Online SC 1199, the Supreme Court held as follow:

In view of the submissions made by the learned Counsel for the Petitioner, pleadings made in the transfer petition and the settled position of law, this Court is inclined to allow the prayer made in the transfer petition.

Accordingly, the learned Judge, Family Court, Cuttack is directed to transmit the case record in C.P. No.507 of 2025 to the Court of learned Judge, Family Court, Jagatsinghpur at the earliest, preferably within a period of seven days from the date of production of certified copy of this Judgment.

On receiving the case record in C.P. No.507 of 2025 from the Court of learned Judge, Family Court, Cuttack, the Court of learned Judge, Family Court, Jagatsinghpur shall re-register the said case, if so required, and proceed further in accordance with law giving due opportunity to both the parties and shall try to conclude the said proceeding at the earliest, preferably by the end of December, 2026.

Since both the parties are serving, it is made clear that both of them will be at liberty to appear before the Court of learned Judge, Family Court, Jagatsinghpur through virtual mode, with due permission of the concerned Court, in case they face any difficulty on any date to appear physically before the said Court.

The learned Judge, Family Court, Jagatsinghpur is requested to explore the facility of video conferencing available in the said Court and allow the parties to appear through video conferencing mode following the guidelines prescribed under the Orissa High Court Video Conferencing for Courts Rules, 2020. However, on the dates of effective hearing, i.e., for examination and cross-examination of witnesses and other purposes, for which their presence may be required by the Court and if it is so ordered, the parties so also their witnesses, if any, shall remain physically present before the learned Judge, Family Court, Jagatsinghpur.

To avoid delay and notice, both the parties are directed to make a query themselves or through their Counsel from the Court of learned Judge, Family Court, Jagatsinghpur to ascertain the date and purpose of posting of C.P. No.507 of 2025 and participate in the said proceeding.

Both the parties are directed not to seek for unnecessary adjournments and cooperate with the learned Judge, Family Court, Jagatsinghpur for early disposal of C.P. No.507 of 2025, as directed above.

Since the wife allegedly did not agree to join the Opposite Party-husband, being suggested by this Court during pendency of MATA No.216 of 2024, which was ultimately dismissed, followed by filing of C.P. No.507 of 2025 by the Opposite Party-husband, it would be open for both the parties to move a joint application before the learned Judge, Family Court, Jagatsinghpur in C.P. No.507 of 2025, for conversion of the said application to an application under Section 13(B) of Hindu Marriage Act, for mutual divorce.

It is made clear that, if such application is moved, learned Judge, Family Court, Jagatsinghpur shall do well to deal with and dispose of the same in accordance with law.

With the aforesaid said observation and direction, the transfer petition stands allowed and disposed of.

Office is directed to communicate a copy of this Judgment to the Court of learned Judge Family Court, Cuttack, so also the Court of learned Judge, Family Court, Jagatsinghpur enabling the said Courts to act in terms of the observations made above.

Urgent certified copy of this Judgment be granted on proper application as per rules.