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Judgment
Nikhil S. Kariel, J
Heard learned advocate Ms. Avnika Panchal for learned advocate Mr. Paresh Vaghela for the applicant and learned advocate Mr. Kumar H. Trivedi for the respondent.
By way of this application, the applicant prays for transfer of HMP No. 1261 of 2020 pending before the court of learned Family Court, Ahmedabad to the learned Additional Chief Judicial Magistrate at Bhachau, Kutchh.
Learned advocate Ms. Panchal for the applicant would submit that while the applicant and the respondent have got married some where in the year 2012. On account of differences, the parties are residing separately and whereas the present applicant is residing with her parents at Bhachau, Kutchh. Learned advocate would submit that the present application of which transfer sought for is pending before the Family Court, Ahmedabad and whereas the distance of between Bhachau and Ahmedabad being more than 250 kms and in view of the fact that the present applicant is an unemployed lady, it would cause grave inconvenience to the present applicant for attending the Court proceedings at Ahmedabad. Learned advocate Ms. Panchal would also submit that the present applicant had also preferred an application under Section 125 of Cr.P.C. for maintenance against the respondent-husband at Bhachau and whereas the learned Magistrate has granted an amount of Rs, 2000/- as maintenance. Having regard to such submission, learned advocate would submit that this Court may transfer the HMP to an appropriate Court at Bhachau.
This application has vehemently objected by the learned advocate Mr. Kumar Trivedi for the respondent- husband. Learned advocate for the respondent would submit that while the distance between Bhachau and Ahmedabad is undoubtedly more than 250 kms, but the present respondent- husband is employed in a private firm and whereas it would be very difficult for the respondent to take leave to attend the proceedings at Bhachau and whereas the present respondent-husband is ready and willing to pay the transportation and accommodation cost to the applicant- wife and whereas learned advocate would request this Court not to consider the present application.
Considering the submissions made by the learned advocates for the parties, it appears that the applicant is residing at Bhachau and the fact that the Hindu Marriage Petition being preferred at Ahmedabad are undeniable, at the same time, it also appears that the present applicant is unemployed lady aged about 27 yrs. and whereas, it would be in considered opinion of this Court, a grave inconvenience to the present applicant, if she is required to travel on every occasion from Bhachau to Ahmedabad. Furthermore, while the respondent- husband is inclined to pay the travel expenses, the aspect of the inconvenience, would take precedence over the payment of the travel expenses and whereas merely because the husband is employed, that could not give the husband any vested right to claim that he would be in a position to travel to the place where the wife is residing.
In this regard, at his stage, this Court seeks to place reliance on the decision of the Hon’ble Apex Court in the case of NCV Aaishwarya Vs. A.S. Saravana Karthik Sha reported in 2022 SCC online SC 1199, more particularly Paragraph Nos. 9 & 10 thereof :
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“9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife’s convenience which must be looked at while considering transfer.
Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and confict of decisions.”
Considering the law laid down by the Hon’ble Apex Court and having regard to the facts of the present case as referred to hereinabove, a case for transfer is made out. The HMP No. 1261 of 2020 pending before the Court of learned Family Court, Ahmedabad is directed to be transferred to the learned Additional Chief Judicial Magistrate at Bhachau, Kutchh.
After the papers of HMP No. 1261 of 2020 are received, the Additional Chief Judicial Magistrate at Bhachau, Kutchh shall issue appropriate notice to the respondent herein and whereas after giving adequate opportunity to all parties, decide the application on its own merits.
With these observations and directions, the present application stands disposed of as allowed.
Direct service is permitted.