PRITIKONA BANERJEE Vs. RABI SHANKAR BANERJEE

JUDGEMENT

(1.) The defendant wife made this application under S.24 of the Civil Procedure Code, 1908 for transfer of Matrimonial Suit No. 77 of 1985 filed by the plaintiff opposite party husband for restitution of conjugal rights in the learned District Judge's Court, Howrah. Mr. Banerjee appearing on behalf of the plaintiff opposite party husband has raised a preliminary objection to the maintainability of this application under S.24 of the Civil Procedure Code on the ground that the special provision to transfer petition contained in S.21A of the Hindu Marriage Act has by implication ousted the jurisdiction of this Court under S.24 of the Act in the matter of transfer of matrimonial proceedings. We are unable to agree. In the first place, the conditions for applicability of S.21A of the Hindu Marriage Act are not present in the present case. Only one matrimonial proceeding instituted by plaintiff husband is pending in the learned District Judge's Court, Howrah. Neither party has presented either in the District Judge's Court, Howrah or in other District Court any other proceeding specified in S.21A of the Hindu Marriage Act. We are relieved of the necessity of giving further reasons because Mr. Banerjee appearing on behalf of the plaintiff opposite party himself has drawn our attention to the decision of the Supreme Court in Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry, AIR 1981 SC 1143. Tulzapurkar, J. delivering the judgement of the Court inter alia held that the case in Smt. Rama Kanta v. Ashok Kumar, reported in AIR 1977 Punj and Har 373 and also the case of Priyavari Mehta v. Priyanath Mehta, reported in AIR 1980 Bom 337 were not correctly decided and had accordingly overruled them. The learned Judge clearly recognised a stand in which S.21A would be inapplicable and the resort will have to be (had) to the powers under Ss. 23 to 25 of the Civil Procedure Code for directing transfer of petitions for consolidated hearing. It was further held that S.21A of the Act provided for joint and consolidated trial in certain cases and the said provision was not exhaustive. The above decision of the Supreme Court being binding upon us we are unable to entertain any contrary submission regarding the scopes of S.21A of the Hindu Marriage Act and of S.24 of the Civil Procedure Code.

(2.) We proceed to consider whether in the interest of justice the matrimonial proceedings now pending in the learned District Judge's Court, Howrah ought to be transferred. We have taken due consideration of the fact that the defendant petitioner wife resides in a remote village in the district of Birbhum and that she would be seriously inconvenienced if she was to frequently come to Howrah for contesting the matrimonial suit. Not only there would be hazards of travel over a fairly long distance but also Court may take judicial notice of the acute difficulty of obtaining accommodation except at considerable costs in the town of Howrah. At the same time we are not unmindful of the difficulty which the plaintiff husband may face by reason of the matrimonial suit being transferred to Suri from Howrah where he is at present working. Therefore, after considering all aspects of the matter we direct that the Matrimonial Suit No. 77 of 1985 be transferred from the Court of the learned District Judge, Howrah to the Court of the learned District Judge, Burdwan from the point at which the suit had been pending till this order of transfer was made. The learned District Judge may try the suit or may transfer the suit to the learned Additional District Judge's Court at Burdwan. The suit be expeditiously disposed of in accordance with law. To expedite the hearing we direct the defendant wife to file her written statement in the learned District Judge's Court, Burdwan within two months from this date. The learned District Judge will be at liberty to extend the time in case sufficient cause is made out. Both parties waive service of notice. We express no opinion on the merits. The learned District Judge, Howrah will transmit the records to the Court of the learned District Judge, Burdwan expeditiously.

(3.) The revisional application is thus disposed of. There will be no order as to costs.