ARPITA MANNA (BERA) Vs. SAHADEV BERA

JUDGEMENT

(1.) This is an application under Section 24 of the Code of Civil Procedure (hereafter the CPC), filed by the wife/petitioner against her husband/opposite party praying for transfer of Act 8 Case No.42 of 2018 from the Court of the Learned District Judge, Barasat to the Court of the learned District Judge, Paschim Midnapur.

(2.) In her application it is stated by the petitioner that her marriage was solemnized with the opposite party on 12th July, 2008 and after one year of marriage she gave birth to a female child who is now aged about nine years. Marital life of the petitioner with the opposite party was not happy. She was physically tortured and mentally abused by her husband. Complaining about inferior quality of bridal gifts and streedhan articles he also used to put pressure upon the petitioner for money to be brought from her paternal home. The petitioner was compelled to lodge a written complaint before the police authority on the basis of which Baranagar P.S Case No.498A of 406 of the Indian Penal Code was registered against the opposite party. It was not possible for the petitioner to stay with her husband at Baranagar and she was taken to the paternal home of the opposite party at Moyna in the district of Purba Medinipur. She was also tortured by the family members of the opposite party at her matrimonial home and finally her father took her to his house along with her minor daughter at Paschim Medinipur. The petitioner has filed a case under the Protection of Women from Domestic Violence Act, 2005 in the Court of the learned Judicial Magistrate at Paschim Medinipur. The opposite party on the other hand, has filed an application under Section 9 of the Hindu Marriage Act for Restitution of Conjugal Rights before the learned District Judge, Purba Medinipur at Tomluk. The opposite party has filed an application praying for custody of their minor child under Section 25 of the Guardians and Wards Act, 1890 before the learned District Judge, North 24 Parganas at Barasat. The said proceeding was registered as Miscellaneous Case No.42 of 2018. It is pleaded by the petitioner that she is a resident of village Barbudhi within P.S Kharagpur (local) in the district of Paschim Medinipur. She will have to travel more than 150 km from her present residence to Barasat. There is no direct communication from Karagpur to Barasat and it takes about nine hours to reach Barasat from her paternal home. Moreover, she has no independent source of income. There is no other person at her paternal home to accompany her regularly to attend the court of the learned District Judge, North 24 Parganas at Barasat. Therefore, she prays for transfer of case No.42 of 2018 from the court of the learned District Judge, North 24 Parganas at Barasat to the court of the learned District Judge, Paschim Medinipur at Medinipur.

(3.) The opposite party has been contesting the said application by filing affidavit-in-opposition were in he has denied the material allegations made out against him by his wife, the petitioner herein. It is specifically pleaded by the opposite party that immediately after marriage, the petitioner disclosed that she did not want to stay with the matrimonial relations other than her husband. Conceding the demand of the petitioner the opposite party started to live with her in a tenanted premises at Baranagar. In the said wedlock, the petitioner gave birth to a girl child on 25th June, 2009. After the birth of the girl child the petitioner started pressurising him to stay at her paternal home as a domesticated son-in-law. The opposite party however refused to accept such proposal and the dispute between the started thereafter. After marriage the opposite party came to know that the petitioner is a genetically carrier of Hereditary Haemolytic disease of Thalassemia. The petitioner and her family members suppressed the said fact and gave her marriage with the opposite party. Since 19th June, 2019, the petitioner has withdrawn herself from the society of the respondent at her own volition without any reasonable excuse. The petitioner lodge a complaint under Section 498A/406 IPC against the opposite party and the criminal case is pending at Barakpur. She also filed an application under Section 12 of the PWDV Act in the Court of the learned Chief Judicial Magistrate, Paschim Medinipur, which is now pending before the learned Judicial Magistrate, 1st Court at Paschim Medinipur. In spite of institution of such criminal cases against him, the opposite party is still willing and wants to live normal marital life with the petitioner. So, he filed Matrimonial Suit No.238 of 2012 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The opposite party is regularly paying a sum of Rs.4000/- per month to the petitioner on the basis of an order passed by the learned Judicial Magistrate, 3rd Court, Paschim Medinipur on an application under Section 23(2) of the PWDV Act. The petitioner is regularly contesting the criminal case filed against the opposite party at Barakpur. Since the opposite party has been residing at Baranagar he has filed an application under Section 25 of the Guardians and Wards Act before the learned District Judge, North 24 Parganas at Barasat. He is the natural guardian of his daughter. As a natural guardian he has every right to have the custody of the child. Therefore the opposite party has prayed for dismissal of the instant revision under Section 24 of the CPC.