SUSHMA MISHRA Vs. MITHILESH KUMAR MISHRA

JUDGEMENT

(1.) THE applicant is the wife of the opposite party and has filed the present application under section 24 of the C. P. C for the transfer of the marriage dissolution case No. 161 of 2007, filed under section 13 of the Hindu Marriage Act, from the Court of Principal judge, Family Court Allahabad to the Court of allpore District Court, South 24, Parganas, Kolkata in the State of West Bengal. The applicant alleged that the marriage was solemnized with the opposite party at Allahabad on 5. 2. 1994 and, since then, the parties resided together at Allahabad and a male child was born in the year 1995. The applicant alleged that the opposite party, being unemployed, used to physically and mentally torture her and eventually on 15. 2. 2007, the opposite party threw out the applicant from his house, as a result of which, the applicant had no place to cover her head and eventually, she had to take shelter in her parents house which was located in Kolkata in the State of West Bengal. The applicant contended that at the present moment she is residing with her parents at Kolkata and has also filed a matrimonial suit No. 500 of 2000 before the District Judge, allpore under section 9 of the Hindu Marriage Act for the restitution of conjugal rights. The applicant contended that the suit pending before the Family Court, Allahabad should be transferred to Kolkata on the ground that she was residing at Kolkata at the time of the presentation of the petition under section 13 of the Hindu Marriage Act and therefore, the suit ought to have been filed at the place where she was residing in view of the provisions of section 19 of the Family Courts Act. Further, the applicant contended that it was not possible for her to come to Allahabad on each and every date and that her parents are more than 70 years old and it was not possible for her parents to accompany her to Allahabad on each and every date. The applicant also contended that her application under section 9 was also pending in Kolkata and therefore, it was necessary that both the suits should be decided together.

(2.) THE opposite party resisted the transfer application and submitted that the High Court had no jurisdiction to transfer the suit to Kolkata under sections 22, 23 or 24 of the Code of Civil Procedure and that, the Supreme Court alone had the power to transfer the suit under section 25 of the C. P. C. The opposite party submitted that in any case no cause of action arose in the State of west Bengal for the Court to consider the transfer of the case from Allahabad to Kolkata. The opposite party submitted that the applicant had always been a permanent resident of Allahabad and that her entire schooling and education was held at Allahabad and that her parents also lived at Allahabad and eventually, the applicant was married to the opposite party at Allahabad and thereafter continued to reside at Allahabad. The opposite party further contended that even after 15. 2. 2007, the applicant continued to remain in Allahabad and is not residing in Kolkata and that the suit under section 9 had only been filed in order to harass the opposite party.

(3.) THE applicant, in rejoinder affidavit has filed various documents, namely, the identity card issued by the Election Commissioner of west Bengal, the ration card, etc. to show that her parents are residents of Kolkata since the year 1996 and therefore, contended that her parents are residing in a permanent capacity in the State of west Bengal.