Court: GAUHATI HIGH COURT
Bench: JUSTICE Arup Kumar Goswami
Priyanka Das Bora Vs. Diganta Bora On 13 May 1994
Law Point:
Civil Procedure Code, 1908 — Section 24 — Hindu Marriage Act, 1955 — Sections 13(1)(ia), (ib) — Transfer of matrimonial case — No case made out by petitioner-wife — Petitioner is working as an Asstt. teacher — Plea of financial constraints cannot be entertained — Advice slip of petitioner shows no reoccurrence of renal problem or her health condition such that she is unable to undertake any journey whatsoever — Petitioner is staying with her brothers and can avail their services as an escort — 10 years old daughter of parties is staying with respondent-husband for last 6 years at Dibrugarh — No case made out for transfer of case from Court of ADJ, Dibrugarh to Court of District Judge, Darrang, Mangaldoi.
JUDGEMENT
Heard Mr. C. Goswami, learned Counsel appearing for the petitioner. Also heard Mr. P. J. Saikia, learned Counsel appearing for the respondent.
2. This application under Section 24, CPC is filed by the petitioner praying for transfer of Title Suit (Divorce) No. 39/2015, pending in the Court of the learned Additional District Judge (FTC), Dibrugarh, to the Court of the learned District Judge, Darrang, Mangaldoi. The aforesaid suit was filed by the respondent/husband under Section 13(1)(ia), (ib) of the Hindu Marriage Act, 1955, for a decree of divorce.
3. The marriage between the parties was solemnized on 28.11.2004 at Guwahati. At the time of marriage, the husband of the petitioner was working at Mangaldoi and, later on, he was transferred to Faridabad. A baby daughter was born to the couple on 11.10.2007 at Downtown Hospital, Guwahati. The respondent resigned his job and left Faridabad in December, 2010 and he is presently working as a Senior Accounts Officer in Dibrugarh University since June, 2011.
4. Stating that the petitioner had withdrawn from the society of the husband and had left the matrimonial house to stay at her parental house at Mangaldoi, the respondent had filed a Title Suit (Restoration) No. 77/2013 in the Court of the learned District Judge, Dibrugarh. The petitioner filed a Transfer Petition (Civil) No. 45/13 for transferring the suit to the Court of the learned District Judge, Mangaldoi. The parties to the suit decided to settle the dispute amicably through mediation and, accordingly, by an order dated 19.3.2014, this Court referred the said transfer petition to the Mediation Centre of the Gauhati High Court. A report was submitted by the Mediator of the Gauhati High Court on 9.7.2014, which reads as follows:
“REPORT
The above mentioned case was referred to the Gauhati High Court Mediation Centre vide order dated 19.3.2014. I have been appointed as the Mediator. The parties appeared before me on 28.4.2014 at the Mediation Centre, Gauhati High Court. After a detailed discussion in the Mediation Centre, both the parties decided to settle their dispute amicably through Mediation with regard to the T.S. No. 77(R)/2013, pending in the Court of the District Judge, Dibrugarh.
Facts of the Case:
The petitioner and the respondent got married on 28.11.2004 and out of their wedlock, a female child was born on 11.11.2007. But due to some differences between the parties, the petitioner, Smti. Priyanka Das (Bora), started living in her paternal house at Mangaldoi.
The petitioner appeared in the TET examination and she got qualified in the said examination and got the appointment in the Amiruddin L.P. School at Kalaigaon in the September, 2012. In the month of October, 2012, the petitioner got another job of Assistant Teacher (English) at Dibrugar University. She joined in the said job and was staying with Mr. Diganta Bora along with their child in Dibrugarh. In the month of January, 2013, the petitioner resigned from her job at Dibrugarh University and rejoined in the Amiruddin L.P. School at Kalaigaon and started staying in her paternal house at Mangaldoi. The respondent, Sri Diganta Bora, presently is working at Dibrugarh University and staying at the Dibrugarh University quarter along with his daughter who is about 8 years old and studying at Little Flower School, Dibrugarh. During the discussion, the parties decided to live their married life under the following terms and conditions:
The Agreed Terms and Conditions:
1.
That the petitioner will stay at Mangaldoi in her paternal house during the school working days and during holidays and long vacations of the school, the petitioner will stay with her husband at Dibrugarh till an alternative job is arranged for her in Dibrugarh.
2.
That the daughter of the petitioner and the respondent will stay at Dibrugarh with her father and will continue her studies at the Little Flower School, Dibrugarh.
3.
That the respondent will withdraw the T.S.(R) No. 77 of 2013 pending before the Hon’ble District Judge, Dibrugarh.
4.
That both the parties shall be strictly bound by all the terms and conditions of this Agreement.
5.
That by this Agreement, the Tr.P.(C) No. 45/2013, Smti Priyanka Das (Bora) v. Sri Diganta Bora, pending before the Hon’ble High Court is finally settled at the Gauhati High Court Mediation Centre at Guwahati.”
5. In view of the above, Transfer Petition (C) 45/13 was closed as infructuous by an order dated 21.7.2014.
6. Subsequently, the respondent filed the aforesaid Title Suit (Divorce) No. 39/2015 stating that after the settlement had been arrived at, the petitioner had not gone to her matrimonial house at Dibrugarh and had also not shown her inclination to go to Dibrugarh save and except in one occasion on 24.7.2014 when the respondent was not in Dibrugarh.
7. Mr. Goswami has submitted that the petitioner is physically unfit to undertake journey to Dibrugarh, which is about 500 kilometers away from Mangaldoi, as she is suffering from back ache and had suffered a major attack of acute renal failure. It is also submitted that her income is limited and there is none to escort her to Dibrugarh and, therefore, it is a fit case where this Court ought to transfer the proceedings from the Court at Dibrugarh to the Court at Mangaldoi. He has placed reliance in the cases of Uma v. Hargovind Singh Bisht, reported in (2005) 12 SCC 230; Neelima Rani @ Neelima Rani Palakonda v. Srikanth, reported in (2005) 12 SCC 387 and Smita Sharma v. Vivek Sharma, reported in (2004) 13 SCC 607.
8. Mr. Saikia, learned Counsel for the respondent has submitted that though the petitioner had renal problem in the year 2006, she does not have any such problem as of today and the plea of sickness is set up only as a ground to facilitate transfer of the case. He submits that their 10 years daughter is with him, who is now studying at Little Flower School at Dibrugarh. It is further submitted that the petitioner has her own income as she is employed as Assistant Teacher in Amiruddin L.P. School at Kaligaon, which is a Government School and, therefore, the plea that she is not financially solvent is entirely false. It is also submitted that the petitioner being an educated and self-sufficient lady, she does not need any escort to travel with her to Dibrugarh and if, at all, she needs one, her two brothers, who are residing with the petitioner, can very well accompany her to Dibrugarh. Mr. Saikia also submits that it is not necessary for the parties to appear before the Court on each and every date and the petitioner can always be represented through her Counsel. Accordingly, Mr. Saikia submits that the transfer petition is liable to be dismissed. Mr. Saikia has placed reliance in the case of Anandi Das v. Srijit Das, reported in (2006) 9 SCC 197.
9. I have considered the submissions of the learned Counsel for the parties and have perused the materials on record.
10. In the instant transfer petition, the petitioner has stated that she had gone to her matrimonial house on 20.7.2014 and stayed there till 30.7.2014 and, during this period, sometimes the respondent had locked the door of the room from outside. The grounds for seeking transfer of the aforesaid case are set out in paragraphs 19 to 22, which are as follows:
“19. That the petitioner begs to state that the petitioner is living in Mangaldoi in parents house which is situated at a distance of 20 kms. from Kalaigaon i.e. the place of service of the petitioner and Dibrugarh is situated at a distance of more than 500 kms. from Mangaldai as such it is not possible on the part of the petitioner to leave for Dibrugarh on each and every date to take steps in the said proceeding there. It will be convenient for the petitioner to appear in Mangaldai Court inasmuch as she is living at Mangaldai with her old widow mother.
20. That the petitioner’s income is also limited and in view of this she cannot proceed to Dibrugarh on each and every date to attend the proceeding filed against her and beyond this the petitioner cannot go to Dibrugarh alone inasmuch as she is a young lady.
21. That the petitioner is also not physically fit for journey inasmuch as she has been suffering from back ache and major attack of acute renal failure.
Copies of the medical certificates dated 2.2.2015 and 2.5.2015 are annexed herewith and marked as Annexures-IV and V respectively.
22. That the father of the petitioner has already been expired and as such there is no escort to travel to Dibrugarh.”
11. The respondent had filed an affidavit-in-opposition on 24.8.2015 denying the allegations made in the transfer petition. It is stated that when the petitioner had applied for Teacher Eligibility Test (TET), he had arranged special coaching class for her, but the petitioner, without the knowledge of the respondent, chose the centre of TET Examination at Mangaldoi instead of Dibrugarh, where the respondent was residing with their minor daughter. It is further stated that while the petitioner was working as teacher at Amiruddin L.P. School at Kalaigaon, near about Mangaldoi, at the insistence of the respondent, she had appeared for a walk-in interview for the post of Assistant Teacher (English), at Dibrugarh University Model School, which was held on 18.10.2012, and she was selected. But she refused to join the post and, rather, demanded an amount of Rs. 1 lakh to be paid to her younger brother and, accordingly, on 5.11.2012, the respondent transferred an amount of Rs. 1 lakh from his ICICI Bank A/c No. 008301508195 to the SBI A/c No. 10762976242 of the petitioner’s younger brother and, thereafter, on 14.11.2012, the petitioner joined the post. However, she left Dibrugarh leaving her minor daughter with the respondent on the ground that she would be appearing in a Railway interview at Guwahati. Thereafter, the petitioner resigned from her post of Teacher in Dibrugarh University Model School on 4.1.2013. After the settlement had been arrived at, the respondent was also looking for an alternative job for the petitioner at Dibrugarh and when posts of Assistant Teacher and Office Assistant were advertised by the Dibrugarh University vide Advertisement dated 4.11.2014, the respondent requested the petitioner to apply, but the request was declined by the petitioner.
12. In paragraph 12 of the affidavit-in-opposition, it is stated as follows:
“12. That with regard to the statement made in paragraphs 19, 20, 21, 22, 23, 24, 25 and 26 of the petition, the deponent denies the same and further states that the petitioner is a healthy, young encumber free lady and financial sound as the petitioner is a teacher and staying in the house of her mother along with her two brothers while the deponent has a minor ward who is attending school at Dibrugarh and totally dependent on her father/deponent as such, under such circumstances, the prayer of the petitioner seeking transfer of the proceeding in T.S. (R) 77/2013 should not be allowed for such transfer would be highly inconvenient for the deponent as well as for the other material witnesses and there is every likelihood of miscarriage of justice. Further, the cause of action arose within the jurisdiction at the Court of Dibrugarh and all other material witnesses are also residing within the jurisdiction of the said Court and, as such, the Court at Dibrugarh only has the jurisdiction to try the suit.”
13. No reply to the affidavit-in-opposition has been filed by the petitioner.
14. In Uma (supra), the Supreme Court transferred the case from a Court at Delhi to a Court at Uttaranchal on the ground that the wife was living in remote village in a hill area and her father was dead and she had no escort with her to travel to Delhi. In Neelima Rani (supra), the Supreme Court allowed the transfer of the case from the Family Court at Chennai, Tamil Nadu, to the Court of the Family Judge at Warangal, Andhra Pradesh, on the ground that the petitioner was a lady and she had no other male member to accompany her to Chennai. The Supreme Court also noted that the husband, in any case, had to come from UK to India. In Smita Sharma (supra), the Supreme Court transferred the proceedings from the Court at Bangalore where the husband had filed the divorce petition on the ground that it would be difficult for the wife to travel a distance of over 1000 kilometres from Roorkee, more so, when she had no income.
15. In Anandi Das (supra), the Supreme Court made an observation that at one stage the Supreme Court was showing leniency to ladies. But, since then it was found that a large number of transfer petitions were filed by women taking advantage of the leniency shown by the Court and that the Court was required to consider each petition on its merit. It was observed 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 transfer petitions 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.
6. Accordingly, we dismiss the transfer petition. We, however, direct that the respondent shall pay all travel and stay expenses of the petitioner and her companion for each and every occasion when she is required to attend the Court at Delhi.”
16. The petitioner is, admittedly, serving as an Assistant Teacher in Amiruddin L.P. School at Kalaigaon, Mangaldoi, from 6.9.2012 till date and, therefore, plea of financial constraints cannot be entertained. The petitioner is aged about 40 years and, in support of her illness, she has annexed one Advice Slip dated 2.2.2015 indicating that she is suffering from back ache with restricted movement and urinary tract infection and she was advised to avoid long journey and strenuous work. It is also mentioned in the said Advice Slip that the petitioner had suffered major attack of acute renal failure with Haemoperitoneam on September, 2006. The other Medical Certificate dated 2.5.2015, issued by the SDM and HO, Mangaldoi Civil Hospital, indicates that the petitioner was under his treatment from that date and that she was advised to avoid strenuous work and forward bending.
17. The aforesaid Advice Slip dated 2.2.2015 goes to show that there is no recurrence of renal problem of the petitioner. The Advice Slips do not indicate that the health condition of the petitioner is such that she is unable to undertake any journey whatsoever. It is seen from her own pleadings that she is commuting to and fro 40 kilometres a day from her place of residence to the place of her work. Therefore, the plea taken by the petitioner for transfer on the ground that she is unable to undertake journey is found to be without any merit.
18. With regard to the plea that she does not have any escort to accompany her to Dibrugarh to attend to the proceedings, it has been brought on record that the petitioner is staying with her two brothers. If she really needed an escort, she can avail their services.
19. It is an admitted fact that the 10 years old daughter of the parties is staying with the respondent for the last six years at Dibrugarh.
20. Considering the matter in its entirety, I find that no case is made out for transfer of the case and, accordingly, the transfer petition is dismissed. No cost.
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