KRUPABEN BHARGAVPURI GOSAI Vs. BHARGAV HEMPURI GOSAI

JUDGEMENT

(1.) This application is filed under Sec. 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") by the applicant - wife praying for transfer of a Hindu Marriage Petition No.72 of 2022 pending at the Family Court, Bhavnagar to the Family Court at Jamkhambhalia, District - Devbhoomi Dwarka, on the ground that the distance between Bhavnagar to Jamkhambhalia is approximately 350 kms. one way and it is very difficult for her to attend the Court at Bhavnagar from Jamkhambhalia, and to travel at least more than 10 hours to and fro per adjournment as also she is having two children, one daughter and son, aged about 7 years and 10 years.

(2.) Heard Mr. Brijesh Ramanuj, learned advocate for the applicant - wife. It is submitted that there are two proceedings filed against the respondent - husband at Jamkhambhalia, one is prosecution under Sec. 498-A of the Indian Penal Code (hereinafter referred to as " IPC ") as also under Sec. 127 of the Code of Criminal Procedure, 1973 (hereinafter referred to as " Cr.P.C .") are filed by the applicant - wife at Jamkhambhalia, where in both the proceedings, respondent - husband is required to attend the cases. Therefore, he has requested that the prayer for transfer of aforesaid H.M.P. may kindly be considered and granted.

(3.) As against that, Mr. Maulik Shelat, learned advocate for the respondent - husband, submitted that husband has obtained a decree for restitution of conjugal rights after bi-parte hearing and the applicant - wife has not obeyed that decree despite execution is filed. He has further submitted that in view of Sec. 13(1A)(ii) of the Hindu Marriage Act, 1955, after obtaining a decree of restitution of conjugal rights which is not obeyed, there is nothing to be proceeded in the suit for divorce, as for non-compliance of the aforesaid decree, only consequential order to be passed in a divorce proceedings. It is further submitted that if that decree for restitution of conjugal rights is not obeyed for a year, under the said provisions, the decree for divorce is to be passed and it may not take full-fledged trial and therefore, it is not required to be transferred. He has further submitted that unlike other divorce proceedings, no full- fledge trial is to be conducted and it can be determined as a preliminary issue also and therefore, request for transfer of the said case may not be entertained. He has further submitted that the respondent - husband is ready to bear the cost of the applicant - wife for attending the Court at Bhavnagar, to and fro, on each adjourned dates. He has further submitted that in a prosecution under Sec. 498-A of " IPC ", which is filed at Jamkhambhalia, where the transfer of Hindu Marriage Petition is sought for, it has not been concluded as the applicant - wife is not attending the case for giving deposition before the Court. Therefore also, he has submitted that the case may not be transferred. At last, it is submitted that even if Court has come to the conclusion that case is required to be transferred, it should be transferred at a place in between and maybe nearby Jamkhambhalia but not at Jamkhambhalia as requested.