1) Heard Mr. D. Bora, learned counsel for the petitioner as well as Mr. P.P. Borthakur, learned counsel for the respondent.
2) By the order passed today in Review. Pet. 3/2018, this Court has re-called the judgment dated 12.09.2017 passed by this Court in this transfer
petition on the ground that though the respondent is represented by his counsel and his stand was not recorded and the Court proceeded on the
premises that the respondent had not appeared in this case.
3) The learned counsel for both sides have been heard on 05.09.2018 as well as on 25.09.2018 in connection with Review Petition No.3/2018.
4) The petitioner who is the estranged wife of the respondent has filed this transfer petition under section 24 CPC for transfer of the proceeding of
Misc. (G) Case No.24/2017 from the Court of learned Principal Judge, Family Court, Kamrup (M), Guwahati to Court of learned District Judge,
Jorhat. The said case is filed under section 7 of the Guardianship and Wards Act, 1890 read with section 7 of the Family Courts Act, 1984 by which
the respondent had prayed for appointment of guardian of minor son of the parties.
5) In the transfer petition it is projected that the son of the parties was born on 27.12.2011 and, as such, at the time of filing of the transfer petition, the
child was about 5½ years old and he was then studying in the 1st standard at a school of Jorhat.
6) It is projected that aggrieved by various acts of the respondent, the petitioner had to leave the matrimonial home and had to live at Jorhat with her
parents along with the minor child and thereafter the petitioner filed T.S.(M) No.34/2013 under section 13 of the Hindu Marriage Act, praying for a
decree of divorce. The respondent did not contest the proceeding and, as such ex-parte decree of divorce was granted by the learned District Judge,
Jorhat by judgment and decree dated 26.05.2014 passed in T.S. (M) No.34/2013.
7) It is projected that in order to claim permanent alimony and the custody of the child, the petitioner has filed an application under section 25-26 of the
Hindu Marriage Act, 1955, which was registered as Misc. (J) Case No. 51/2004 in T.S.(M) No.34/2013 and on appearance of the respondent, the
said proceeding is at the evidence stage before the Court of learned District Judge, Jorhat.
8) The learned counsel for the petitioner has submitted that the respondent has not given any maintenance for a decent livelihood of the petitioner as
well as her minor son and therefore, the petitioner is dependent on her father for everything including the education of the minor son. It is also
submitted that the father of the petitioner being a senior citizen is suffering from various diseases and is unable to accompany the petitioner to attend
the Court proceedings at Guwahati and though the petitioner has a younger brother, in order to sustain the family, he is engaged in business and in
connection with his business work he mostly remains out of station and therefore, the petitioner has no-one to accompany her to Guwahati and her
minor son to attend the Court case.
9) It is further submitted that the respondent is working as an Assistant Engineer (Mechanical) with Water Resource Mechanical Division,
Government of Assam and therefore, the respondent will not be prejudiced to appear in the Court proceeding at Jorhat. However, if the proceeding is
carried on in Guwahati, due to inability of the petitioner to attend the proceeding, it would mean the denial of justice to her.
10) It is further submitted that after filing of this transfer petition, the respondent, as a counter-blast has filed Money Suit No.218/17, which is pending
for disposal before the Court of learned Civil Judge No.2, Kamrup (M), Guwahati in respect of which the petitioner had filed a transfer petition, which
is registered as Tr.P.(C) No.7/2017 and he has also filed a Complaint Case, being CR Case No.2078/18, which is pending before the Court of learned
Judicial Magistrate, First Class, Guwahati and the respondent has also filed Misc. (G) Case No. 24/2017, which is to harass the petitioner, knowing
well that the petitioner has no financial capability to appear at Guwahati and to contest the said multiple proceedings.
11) It is further submitted that as the respondent has also filed a guardianship case, while the petitioner filed a proceeding for custody of the child
under section 26 of the Hindu Marriage Act, if both the cases are tried together, there would be no chance of conflict of decision by 2(two) Courts.
12) Per contra, the learned counsel for the respondent has submitted that the Courts at Guwahati have the jurisdiction to appoint a guardian of the
minor son and, as such, there is no justification to change the venue of the trial to Jorhat. Reliance has been placed on the case of Rosalind Margaret
Baksh Vs. District Judge, (2005) 1 GLR 394 : 2004 (2) GLT 126. It is submitted that this Court has held that as a general rule, the Court should not
interfere and transfer of matters unless the expenses and the difficulties would lead to injustice and that in the matter of transfer from one Court to
another, the main consideration is failure of justice. In the said case, this Court had held that a 4 (four) month old child is sufficiently old to travel with
the mother wherever called upon or to be kept with close relatives. Therefore, in the present case as the child is now about 5½ years old, the minor
child can be brought to Guwahati to attend the Court proceeding.
13) By referring to the various proceeding, the learned counsel for the respondent has submitted that although the petitioner is not entitled to any
expenses, but if the Court so directs, the respondent is ready to bear the cost of travelling of the petitioner and the minor son for one or two dates
whenever the appearance of the petitioner is required and on other dates she can be represented by the counsel in the Family Court.
14) By referring to the case of Santhini Vs. Vijaya Venkatesh, (2018) 1 SCC, it is submitted that in para 58.2 of the said judgment, the Hon’ble
Apex Court had held that after settlement fails and both sides filed their respective consent memo for hearing of the case through video conference
before the Family Court concerned had made an exercise for discretion of allowing the said prayer. Therefore, it is submitted that on appearance of
the parties before the learned Family Court at Guwahati both of them can file joint petition for trial by video conference which would obviate the
difficulties faces by the petitioner. Further referring to the various litigations, it is submitted that the petitioner is litigating before the Court at Jorhat and
she has approached this Court twice by filing two separate transfer petitions, it cannot be believed that the petitioner is unemployed and in this context
it is submitted that as per his instructions the petitioner is presently working. It is also submitted that if the case is transferred to Jorhat, the respondent
would also suffer a prejudice as it would affect his service.
15) Accordingly, the leaned counsel for the respondent has prayed for dismissal of this transfer petition.
16) Although the learned counsel for the respondent has referred to the nature of dispute between the parties, such matters are to be decided by the
learned trial Court and they are not relevant for the purpose of deciding the transfer petition under section 24 CPC.
17) Considering the materials available on record, as well as the submissions made by the learned counsel for both sides. The main reasons for
seeking transfer by petitioner can be summarized as follows-
1. That the petitioner is a lady having no one to accompany her from Jorhat to Guwahati and there is no one at Guwahati with whom she can stay for
a day or two in Guwahati for attending Court proceeding with her minor child.
2. Travelling with a minor child would affect his studies, and would put the petitioner to additional financial stress as a child would require special diet
and feed and rest.
3. Due to old age and ailment, the father of the petitioner cannot accompany her to attend the Court cases and the brother remains out of station for
his business purposes for which he cannot accompany the petitioner.
4.That the petitioner is unemployed and having received no maintenance, if she is compelled to come to Guwahati to litigate, it would mean denial and/
or failure of justice as she would not be in a position to travel, stay at a Hotel and to engage a counsel to represent her.
18) Under the aforesaid circumstances, this Court finds that the case of Rosalind Margaret Baksh (supra) cannot be applied in this case because if the
petitioner has no source of income and she has not been getting any maintenance or permanent alimony till date, this Court has to accept that under
such circumstances, if the petitioner is compelled to come to Guwahati with her minor son to attend the Court cases, it would not only be
unreasonable, but it would also amount to denial of justice to her.
19) This Court in the case of Rosalind Margaret Baksh (supra) had taken cognizance of the fact that Courts should not interfere with a transfer of
matter unless the expenses and difficulties would lead to injustice and under such circumstances it cannot be said it would lead to failure of justice.
Under the scheme of section 13 of the Family Court Act, on the request of the parties the Court may provide an amicus curiae. But still, to instruct an
amicus curiae, it is natural that the petitioner would have to atleast stay overnight to give instructions for her proper representation in the case. As on
date, there is nothing on record by which the respondent can deny that he has not paid maintenance or litigation cost to the petitioner.
20) On the other hand, the respondent is stated to be working as an Assistant Engineer under the Government of Assam, therefore, on being
compared to the petitioner, the respondent would have lesser inconvenience to attend the Court’s proceeding at Jorhat.
21) Moreover, in respect of custody of the child, the petitioner has already filed Misc.(J) Case No.51/2014 in T.S.(M) No.34/2013 which appears to
be in prior point of time. Accordingly, if the said case is tried together with Misc.(G) Case No.24/2017, there would be no chance of conflict of
decision by 2(two) Courts.
22) Having noted the difficulties of the petitioner and the likelihood of a possibility of failure of justice to her if the proceedings continues at Guwahati,
this Court is inclined to allow this application by transfer of the proceedings of Misc.(G) Case No.24/2017 from the Court of learned Principal Judge,
Family Court, Guwahati to the Court of learned District Judge, Jorhat.
23) Accordingly, both parties who are duly represented by the learned counsel are directed to appear before the Court of learned District Judge,
Jorhat on 12.11.2018 without any further notice of appearance and on the said date, by producing a copy of the order of this Court, the parties shall
seek further instructions from the said learned Court.
24) The petitioner shall produce a certified copy of this order before the Court of learned Principal Judge, Family Court, Kamrup (M), Guwahati within
a period of 1(one) week from today so as to enable the said learned Court to transfer the records of Misc.(G) Case No.24/2017 to the Court of
learned District Judge, Jorhat.
