A. Hazarika, J.
1. Heard Mr. G.P. Bhowmik, learned Counsel for the petitioner assisted by Ms. J. Purakayastha and Mr. Z. Hussain, learned Counsel appearing for the respondent in Tr. P. (C) No. 12/2005.
2. Both Tr. P. (C) No. 11/2005 and Tr. P. (C) No. 12/2005 are taken up together for disposal at the admission stage itself with the consent of learned Counsel appearing for both the parties.
3. In Tr. P (C) No. 11/2004, by an application under Section 24 of the Code of Civil Procedure, the petitioner has prayed for transfer of T. S. No. 1/2005, pending in the Court of the District Judge, Dibrugarh, to the Court of Principal Judge, Family Court, Kamrup, Guwahati or any other court except Dibrugarh as the F.C. (Civil) No. 36/2005, filed by the petitioner, in the Court of the Principal Judge, Family Court at Guwahati is pending for disposal.
4. The brief facts leading to this petition are, the opposite party (wife) filed the suit being T.S. (D) No. 1/'05 in the Court of the District Judge, Dibrugarh under Section 13(1)(I-a) of the Hindu Marriage Act, 1955 for a decree of divorce with the revision petitioner. At this stage, in my view, it is not necessary to go on details to the allegations made in the said title suit, in as much as, this Court is not going to dispose of the matter on merit. This Court is to see whether the petitioner has been able to make out any case for transfer of the Title Suit pending in the Court of District Judge, Dibrugarh to the Court of Principal Judge, Family Court or any other Court except Dibrugarh.
It is submitted on behalf of the petitioner that, when he was under medical treatment, he suddenly received a notice on 3.2.05 from the learned District Sessions Judge, Dibrugarh asking the petitioner to appear in the Court on 4.2.2005 in the said title suit. The petitioner accordingly went by night super bus on 3.2.2005, and reached at Dibrugarh on 4.2.2005 at 10 A.M. But there he was vehemently attacked and threatened with dire consequences along with pistol and dagger, by one Radhesyam Paul along with 5/6 hired persons. They also attached and threatened the petitioner asking him not to go again to the District Judge, Dibrugarh regarding T.S. (D) No. 1/2005 and they cautioned him that if he comes again, he will be killed. After the said incident, the petitioner somehow managed to rescue himself and returned to Guwahati by night super bus and filed an "ejahar" on 6.2.2005 before the Azara P.S., Guwahati in the District of Kamrup, Assam and the said ejahar was registered as G.D. Entry No. 305 by the Police of Azara P.S. on 10.2.2005, and forwarded the ejahar to the Officr-in-Charge, Dibrugarh P.S. to register a case as per provision of law. As nothing has been done on the basis of the said ejahar till date, the petitioner has apprehended that, he will again face trouble while appearing in the Court of the learned District Judge, Dibrugarh in connection with the T.S. (D) No. 01/2005. On the other hand the petitioner has filed a petition bearing No. F.C. (Civil) No. 36/2005, on 1.2.2005, against the respondent under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Principal Judge, Family Court, Kamrup, Guwahati. After registering the case, the Family Court, Kamrup, Guwahati issued notice to the respondent to appear before the learned Court on 11.3.2005. It has also been submitted on behalf of the petitioner that the petitioner is suffering from Viral Hepatitis and he has been advised complete bed rest for 45 days with effect from 27.1.2005. To that effect, the petitioner has annexed a medical certificate issued by Dr. J.R. Samaddar dated 27.1.2005 (Annexure-1).
5. It has been further submitted on behalf of the petitioner that due to his ill health and for the incident occurred on the day, when he went to the Court, he has apprehension to go to Dibrugarh again and thus he has filed this instant petition for transferring the T.S. (D) No. 01/2005, pending in the Court of the District Judge, Dibrugarh to the Court of the Principal Judge, Family Court, Kamrup, Guwahati or to any other Court, except at Dibrugarh.
6. Mr. Bhowmik, learned Counsel appearing for the respondent vehemently opposed the petition for transferring the T.S. (D) No. 01/2005 from District Judge, Dibrugarh to the Court of the learned Principal Judge, Family Court, Kamrup, Guwahati. Referring to Section 19(iii)(a) of the Hindu Marriage Act, 1955, Mr. Bhowmik submits that by this new amendment, it has been provided that, if the wife is the petitioner, where she is residing on the date of presentation of the petition, she may file a petition under the Hindu Marriage Act and in that view of the matter, the wife can file the petition as provided by law where she presently resides and as she is presently residing at Dibrugarh with her parents, she has filed the petition within the local limits of the original Civil Jurisdiction of Dibrugarh, i.e. in the Court of the District Judge, Dibrugarh. Mr. Bhowmik further submits that the respondent wife is not a working woman and she has no means of livelihood and at presently she is staying with her parents and she is dependent on her father, as well as she has a minor son aged about 3 years. Both the respondent and her minor son are now wholly dependent on her parents and the petitioner has not been paying anything to them since 17.7.2004, when she left for her parent's house.
Mr. Bhowmik submits that the respondent, as petitioner has filed an application under Section 24 of the Code of Civil Procedure read with Section 21Af sec of the Hindu Marriage Act, 1955 before this Court praying for a direction to transfer the case No. F.C. (Civil) No. 36/2005, pending in the Court of the learned Principal Judge, Family Court, Kamrup, Guwahati to the District Judge, Dibrugarh, where T.S. (D) No. 01/2005 is pending. The said petition has been registered as Transfer Petition (C) 12/ 2005. In the said petition, the petitioner (wife) contended inter alia that as the petitioner is completely dependent on her parents and she has no income at all, it is not possible on her part to come to Guwahati for contesting the case which is now pending in the Court of the Principal Judge, Family Court, Kamrup, Guwahati and therefore prayed to transfer the case No. FC (Civil) 36/05 to the Court of District Judge, Dibrugarh for the ends of justice.
7. In support of his submission, Mr. Bhowmik has cited the following decisions:
1. , Archana Rastogi v. Rakesh Rastogi.
2. 2000 (2) GLT 599, Sikha Paul Choudhury v. Dilip Paul Choudhury.
3. 2004 (1) GLT 440, Durga Pandit v. Pradip Kr. Pandit.
8. In Archana Rastogi (supra), the Hon'ble Supreme Court while allowing the petition filed by the wife for transferring matrimonial proceeding taken by the husband in the Court of the District Judge, Chandigarh to the Court of the District Judge at Delhi, held that while the wife stayed at Delhi along with her two young children, and she has adopted proceedings for maintenance in Delhi, the case pending in the Court of District Judge, Chandigarh should be transferred to the Court of the District Judge, Delhi.
9. In Sikha Paul Choudhury, this Court while discussing the decision , Geeta Heera v. Harish Chandra Heem and
, Archana Rastogi v. Rakesh Rastogi, as well as a
decision of this Court reported in (1995) 3 GLR 370 : (1995 (3) GLT 500 : Krishna Roy Choudhwy v. Ranjit Roy Choudhury held that in the interest of justice, the prayer of the petitioner (Wife) be allowed and thereby allowed the prayer of the petitioner for transfer of the proceedings of the divorce case No. 12(T) of 1997, pending in the Court of the Addl. Deputy Commissioner, Shillong to the Court of the District Judge, North Tripura, Kailashahar. Relevant Para. 4 of Sikha Paul Choudhury (Supra) is quoted below:
4. I have heard the rival contentions of the parties. Mr. Dutta in support of his contentions, founded on the statements made in the revision petition, relies on two decisions of the Apex Court , Geeta Heera v. Harish Chandra Heera
and , Archana Rastogi v. Rakesh Rastogi, and also a decision of this Court reported in (1995) 3 GLR 370 : 1995(3) GLT 500 : Krishna Roy Choudhury v. Ranjit Roy Choudhury. In the case reported in Geeta Heera, (supra), it was contended by the wife in support of her prayer for transfer of the Matrimonial proceedings that she did not have sufficient finance to meet the expenses to visit the place of trial and that she also entertained the risk of her life in case she required to do so. The Apex Court in that case allowed the request of transfer on the ground of insufficiency of funds. In the case reported in Archana Rastogi, (supra), the wife in a similar situation prayed for transfer of Matrimonial Proceedings on health grounds. It was also allowed by the Apex Court. In the decision reported in Krishna Roy Choudhury (supra) in reply to the prayer made by the wife, the husband offered to pay to her, to and from travelling expenses for the wife and one escort. In that case also the wife had raised the plea that she had none to escort her to the plea that she had none to escort her to the place of trial and that, her father who was old and ailing and her brothers were not in a position to accompany her to the place of proceedings. This Court, considering the facts and circumstances, granted the prayer for transfer of the proceedings.
10. In Durga Pandit, this Court held that as the wife was residing at Tezpur at her father's residence without having sufficient livelihood, it will be convenient for her if the matrimonial proceeding in question is being tried and heard at Tezpur. While allowing the petition of the petitioner (wife), in that case this Court relied on a decision (Sunita Singh v. Kumar Sanjoy and Anr.),
wherein the Apex Court held that in a case of transfer of matrimonial proceeding initiated by the husband against the wife, the convenience of the wife must be looked into.
11. That being the legal position, this Court is inclined to transfer matrimonial proceeding being F.C. (civil) No. 36/'05 from the Court of the learned Principal Judge, Family Court, Kamrup, Guwahati to the Court of the District Judge, Dibrugarh forthwith.
12. Mr. Z. Hussain, learned Counsel appearing on behalf of the petitioner in Tr. P. (C) No. 11/2005 has vehemently opposed the transferring of the case to the Court of District Judge, Dibrugarh in view of apprehension due to threatening to his life, when he went to Dibrugarh after receipt of the summons to attend the Court. Mr. Hussain submits that, except Dibrugarh the case may be transferred to any other place.
13. Accordingly, with the consent of both the parties and also taking into consideration of the financial position of the petitioner (wife) in Transfer Petition (C) 12/05; on the ground that, she is staying with her parents with her minor son aged about three years only and being completely dependent on her parents, the proceeding now pending before the learned Principal Judge, Family Court being FC (Civil) No. 36/2005 is transferred to the Court of the District Judge, Tinsukia and the case now pending before the learned District Judge, Dibrugarh being case No. T.S. (D) 01/05 shall also be transferred to the Court of the learned District Judge, Tinsukia.
14. It is also made clear that the District Judge, Tinsukia will take up the cases on his file and hear both the matters analogously as per provision of law.
15. Send a copy of this order to the learned District Judge, Dibrugarh, learned District Judge, Tinsukia as well as learned Principal Judge, Family Court at Guwahati, Kamrup.
16. Mr. Hussain submits that the petitioner (the husband) in Tr. P. (C) No. 11/ 05 and the respondent in Tr. P. (C) No. 12/ 05 is now under treatment at Bangalore and he will be able to attend the Court only in the month of September, 2005.
17. Since the parties are represented by their respective learned Counsel, they are directed to appear before the learned District Judge at Tinsukia on 12.9.2005 to obtain further orders.
18. With the above direction and observation, both the Tr. P. (C) No. 11/2005 & Tr. P. (C) No. 12/2005 are disposed of accordingly.
19. No Costs.