Wednesday, February 18, 2015

Wife denied case transfer as HC refuses to believe wife’s FEAR story!! KOLKATA HC. Need less delay to be avoided.

Wife denied case transfer as HC refuses to believe wife's FEAR story!! KOLKATA HC. Need less delay to be avoided. Husband's right as dominus litis accepted!

 

Wife tries to transfer case after taking multiple adjourments and delaying original matrimonial case. Wife tries to support transfer petition with some "police" complaint!!  HC dismisses wife's "fear" theory and refuses to transfer the case!!

 

Facts

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* No allegation of threat was made by wife, since inception of suit in 2009 till 17 Jan 13 and wife contested proceedings by filing written statement.

* After 17 Jan 2013 wife sought repeated adjournments and in said adjournment applications threat was not averred !!

* The trial has commenced and the cross-examination of the husband was closed on 1st of July, 2013.

* Wife has sought various adjourments after the start of trial

* she has also often changed her advocate further delaying proceedings

 

Held :

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* Instant application does not reveal that petitioner suffering from fear psychosis

* Had there been any such fear, wife could not have contested for more than five years at Howrah

* Trial has already commenced at this stage any order directing transfer would unnecessary delay the proceedings

* It is well settled that husband / petitioner is the dominus litis and as such he/she is entitled to file the suit in any forum which the law permits and the Court should not compel him/her to go to any other forum with the consequent increase of expenses and inconveniences

 

Hence HC refuses wife's transfer !!

 

 

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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KOLKATA HIGH COURT (APPELLETE SIDE)

 

157/2015 ON 12 FEBRUARY, 2015

 

REKHA JAIN Vs VIMAL JAIN

 

AUTHOR: TAPABRATA CHAKRABORTY

 

12.2.15

 

C. O. 157 of 2015

 

Mr. Kamakshya Prosad Mukhopadhyay ... For the Wife-Petitioner

Mr. Anuj Singh Mr. A. K. Singh ... For the Husband-Opposite Party

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Pursuant to the earlier direction of this Court, a copy of the application has been served upon the husband-opposite party who is represented today by Mr. Anuj Singh. Let the affidavit of service filed by Mr. Mukhopadhyay be kept on record.

 

The instant application has been preferred by the wife- petitioner praying for transfer of the Matrimonial Suit No. 146 of 2009 filed by the husband-opposite party and pending in the Court of the Learned Second Additional District Judge at Howrah, to the Court of the learned Additional District Judge, Serampore, Hooghly.

 

Mr. Mukhopadhyay, learned advocate appearing for the petitioner submits that the marriage, amongst the parties, was solemnized on 22nd of March, 2005 and out of the said wedlock a male child was born, who is presently eight years old. Subsequent thereto, the wife-petitioner was treated cruelly and as such she was compelled to leave the matrimonial house at Howrah and to take shelter in her parental house at 114, D. P. J. M. Sarani, P.O. Bhadrakali, District - Hooghly.

 

Drawing the attention of this Court to the averments made in paragraphs 14 to 19 of the application, Mr. Mukhopadhyay submits that on 17th of January, 2013 when the petitioner went to attend the said suit at Howrah, during recess hour of the Court, the petitioner and her brother were abused and were physically assaulted. Such incident was immediately reported to the local police station.

 

Drawing the attention of this Court to the injury report at page 29 of the said application, Mr. Mukhopadhyay further submits that the petitioner's brother was beaten up and he underwent medical treatment at Howrah District Hospital and that in the backdrop of such conduct of the husband-opposite party, it has become impossible for the wife-petitioner to contest the matrimonial suit at Howrah and accordingly the prayer for transfer has been made.

 

Per contra Mr. Singh, learned advocate appearing for the husband-opposite party submits that the matrimonial suit was filed way back in the year 2009 and the wife-petitioner is contesting the same by filing the written statement and in the said suit, trial has also commenced.

 

He further submits that on 19th of March, 2012, the husband was cross-examined but subsequent thereto repeated adjournments were obtained by the wife and ultimately such cross-examination was closed on 1st of July, 2013.

 

He further submits that in none of the adjournment applications filed by the petitioner, subsequent to 17th January, 2013, the alleged fact of assault upon her and her brother on 17th of January, 2013 was averred. http://evinayak.tumblr.com  http://vinayak.wordpress.com  http://fromvinayak.blogspot.com

 

The petitioner has frequently changed her learned advocates and has obtained repeated adjournments and from such sequence of facts, according to Mr. Singh, it is explicit that the petitioner's intent is to delay the proceedings.

 

He further submits that the petitioner also initiated a proceeding under the Protection of Women from Domestic Violence Act, 2005 at Howrah itself and the same was dismissed on 12th of November, 2013.

 

I have heard the learned advocates appearing for the respective parties and I have considered the materials on record.

 

The instant application has been filed primarily on the ground that the petitioner is being threatened of dire consequences and that the husband-opposite party has also gone to the extent of physical assaulting her and that as such the petitioner is very much scared to attend the matrimonial proceeding at Howrah.

 

The undisputed facts are that no allegation of threat was made by the petitioner against the husband-opposite party since the inception of the suit in the year 2009 till 17th of January, 2013 and the petitioner duly contested the proceedings by filing written statement. The petitioner has also not been able to dispute the contention of the opposite party to the effect that after 17th of January, 2013 also the petitioner sought repeated adjournments and in the said adjournment applications the alleged fact of threat was not averred. The trial has commenced and the cross-examination of the husband was closed on 1st of July, 2013. The petitioner preferred an application under the Protection of Women from Domestic Violence Act, 2005 at Howrah itself and the same was dismissed on 12th of November, 2013 but the husband has continued to pay the amount of maintenance.

 

The averments made in the instant application do not reveal that the petitioner is suffering from fear psychosis. Furthermore, had there been any such fear, the petitioner could not have contested the proceedings for a period of more than five years at Howrah. Furthermore, trial has already commenced in the said suit and at this stage any order directing transfer would unnecessary delay the proceedings. http://evinayak.tumblr.com  http://vinayak.wordpress.com  http://fromvinayak.blogspot.com

 

It is well settled that the petitioner is the dominus litis and as such he/she is entitled to file the suit in any forum which the law permits and the Court should not compel him/her to go to any other forum with the consequent increase of expenses and inconveniences.

 

Mr. Singh, in course of his submissions, has assured this Court that the husband and his family members shall never give out any threat and shall never prevent the petitioner from contesting the said matrimonial suit.

 

For the reasons discussed above, no interference is called for and the instant application under Section 24 of the Code is dismissed.

 

There shall, however, be no order as to costs. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.

 

(Tapabrata Chakraborty, J.)

 

 

PDF File uploaded to http://1drv.ms/1Lc93Vl

 

 

 


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