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Orissa High Court
Preeti Bai vs Jagdish Chandra Jena …. Opposite … on 16 April, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
TRP(C) No.377 of 2024
Preeti Bai .... Petitioner
Mr. Lalitendu Mishra, Advocate along
with Ms. Shreya Pattanaik, Advocate
-versus-
Jagdish Chandra Jena .... Opposite Party
Mr. Bigyan Kumar Sharma, Senior Advocate
along with Mr. Sudeepta Kumar Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No. ORDER
08. 16.04.2025
This matter is taken up through Hybrid Mode.
2. This petition has been filed by the learned counsel appearing
for the Petitioner under Section 24 of the Civil Procedure Code,
1908 for transfer of MAT Case No.13 of 2023 filed under Section
13(1)(A) of the Hindu Marriage Act, 1955 by the Opposite Party-
husband for dissolution of marriage, which is stated to be pending
in the Court of the learned Civil Judge, (Senior Division), Talcher
to the Court of the learned Judge, Family Court, Bhubaneswar.
3. Learned counsel appearing for the Petitioner submitted that
the Petitioner-wife is now staying in Bhubaneswar for higher
studies and facing difficult to travel from Bhubaneswar to Talcher
to attend the Court proceedings.
3.1. He further submitted that the Opposite Party-husband is now
posted and working in Cuttack for which it would be convenient for
transfer of MAT Case No.13 of 2023 from the Court of the learned
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Civil Judge, (Senior Division), Talcher to the Court of the learned
Judge, Family Court, Bhubaneswar.
4. At this stage, learned Senior Advocate appearing for the
Opposite Party vehemently opposing the contentions of the learned
counsel appearing for the Petitioner submitted that since there are
two other cases, i.e., D.V. Case No.67 of 2022 and G.R. Case
No.468 of 2022 pending before the learned Civil Judge, (Senior
Division), Talcher, no necessity arises for transfer of this MAT
Case No.13 of 2023, pending before the learned Civil Judge,
(Senior Division), Talcher to the learned Judge, Family Court,
Bhubaneswar.
4.1. He, relying on Section 19 of the Hindu Marriage Act, 1955,
submitted that even though power exists for transfer, there is no
justification to exercise such power at the askance of the petitioner.
The said Section is quoted hereunder:-
"19. Court to which petition shall be presented.-
Every petition under this Act shall be presented to the district
court within the local limits of whose ordinary original civil
jurisdiction--
(i) the marriage was solemnised,
Or
(ii) the respondent, at the time of the presentation of the
petition, resides,
Or
(iii) the parties to the marriage last resided together,
Or
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(iiia) in case the wife is the petitioner, where she is residing on
the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of
the petition, in a case where the respondent is, at that time,
residing outside the territories to which this Act extends, or
has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have
heard of him if he were alive.”
4.2. He submitted that mere staying at a particular place for
period would not determine the jurisdiction of the court to proceed
with the trial, but it is the residence which determines cause of
action. The trial is in progress and examination of the Opposite
Party-husband was going on. In the midst of the examination and
the Petitioner had the opportunity to cross-examination. But at that
juncture, the petitioner having approached this Court, by virtue of
interim orders, the matter has been adjourned.
5. Strongly objecting to the contentions of the learned Senior
Advocate appearing for the Opposite Party, learned counsel for the
Petitioner drew attention of this Court to para-8 of the rejoinder
affidavit submitted that the Petitioner filed Domestic Violence
bearing DV Case No.67 of 2022, which is pending before the Court
of the learned S.D.J.M., Talcher but the Opposite Party had filed
CRLMC No.3263 of 2024 before this Court challenging the order
dated 28.03.2022 passed by the learned S.D.J.M., Talcher for
quashing of entire proceeding in CMC No.67 of 2022. This Court
on 27.09.2024 passed an interim order and stayed the CMC No.67
of 2022.
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5.1. He further relying on para-13 of the rejoinder affidavit
submitted that the Petitioner has filed C.P. No.818 of 2024 before
the learned Judge, Family Court, Bhubaneswar on 02.12.2024 under
Section 9 of the Hindu Marriage Act, 1955 for restitution of
conjugal rights.
5.2. Learned Counsel appearing for the Petitioner relied on the
decision of the Hon’ble Supreme Court in the case of N.C.V.
Aishwarya vs. A.S. Saravana Karthik Sha, 2022 SCC Online SC
1199, wherein para-9 reads as under:-
“9. The cardinal principles for exercise of power under Section 24
of the Code of Civil Procedure is that the ends of justice should
demand the transfer of the suit, appeal or other proceeding. In
matrimonial matters, wherever Courts are called upon to consider
the plea of transfer, the Courts have to take into consideration the
economic soundness of both the parties, the social strata of the
spouses and their behavioural pattern, their standard of life prior
to the marriage and subsequent thereto and the circumstances of
both the parties in eking out their livelihood and under whose
protective umbrella they are seeking their sustenance to life. Given
the prevailing socioeconomic paradigm in the Indian society,
generally, it is the wife’s convenience which must be looked at
while considering transfer.”
6. Opposing the submissions made by the learned counsel
appearing for the Petitioner, learned Senior Advocate appearing for
the Opposite Party relied on the decision of the Hon’ble Supreme
Court in the case of Anindita Das vs. Srijit Das, (2006) 9 SCC 197,
paragraph-3 of the said decision is quoted hereunder:-
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“3. Even otherwise, it must be seen that at one stage this Court
was showing leniency to ladies. But since then it has been found
that a large number of transfer petitions are filed by women taking
advantage of the leniency taken by this Court. On an average at
least 10 to 15 transfer petitions are on Board of each Court on
each admission day. It is, therefore, clear that leniency of this
Court is being misused by the women.”
6.1. He further relied on the decision of the Hon’ble Supreme
Court in the case of Krishna Veni Nagam vs. Harish Nagam, (2017)
4 SCC 150, wherein paragraph-18 reads as under:-
“18. We, therefore, direct that in matrimonial or custody matters
or in proceedings between parties to a marriage or arising out of
disputes between parties to a marriage, wherever the
defendants/respondents are located outside the jurisdiction of the
Court, the court where proceedings are instituted, may examine
whether it is in the interest of justice to incorporate any
safeguards for ensuring that summoning of defendant/respondent
does not result in denial of justice. Order incorporating such
safeguards may be sent along with the summons. The safeguards
can be:
(i) Availability of video-conferencing facility.
(ii) Availability of legal aid service.
(iii) Deposit of cost for travel, lodging and boarding in terms of
Order 25, CPC.
(iv) E-mail address/phone number, if any, at which litigant from
outstation may communicate.”
Page 5 of 7
7. Heard learned counsel appearing for the Petitioner and
learned Senior Advocate appearing for the Opposite Party.
8. Considering the contentions made by the learned counsel
appearing for the Petitioner and learned Senior Advocate appearing
for the Opposite Party, this Court finds the reason stated by the
Petitioner is not good ground for transfer of the case from Talcher
to Bhubaneswar. Merely staying at a place for a period for studies
does not indicate that the petitioner has been residing at the said
place. On the said ground alone the transfer petition not liable to be
considered. Accordingly, this Court declines to entertain this
application for transfer solely on the ground of inconvenience in
travelling to attend the proceeding before the court, which is,
therefore, dismissed.
8.1. Though it is well settled vide N.C.V. Aishwarya (supra) that
given the prevailing socio-economic paradigm in the Indian society,
generally, it is the wife’s convenience which must be looked at
while considering transfer, and, while considering the argument of
the husband opposing the transfer on the ground that it was equally
inconvenient for him to travel a distant place and that he would be
willing to pay the expenses for the wife’s travel to the Court to
attend proceeding, it is held in Rajani Kishor Pardeshi Vrs. Kishor
Babulal Pardeshi, (2005) 12 SCC 237 that in these type of matters,
the convenience of the wife would be preferred over the
convenience of the husband, the Hon’ble Supreme Court of India in
Preeti Sharma Vrs. Manjit Sharma, (2005) 11 SCC 535, has been
pleased to make the following observation:
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“Merely because the petitioner is a lady does not mean she cannot
travel to Mazaffar Nagar. At the highest she can be paid expenses
for travel and stay. We, therefore, direct that the respondent shall
pay to the petitioner and a companion travel and stay expenses on
every occasion that the petitioner is required to go to Muzaffar
Nagar. The Court at Muzaffar Nagar shall ensure that such
payment is made to the petitioner on every occasion. With these
directions, the transfer petitions are dismissed.”
9. However, with the advent of technology, facilities have been
put in place in most of the Courts in this State, appearance through
virtual conferencing mode is encouraged. It would suffice to
indicate that the petitioner is granted liberty to seek permission of
the Court concerned to appear through virtual conferencing mode.
In the event such a prayer is made, the Court concerned shall not
insist upon the personal/physical attendance of the petitioner unless
absolutely necessary.
10. With the aforesaid observation, this TRP(C) stands disposed
of. Accordingly, the pending I.A., if any, shall stand disposed of.
11. Registry is instructed to communicate the copy of this order
to the Court of the learned Civil Judge, (Senior Division), Talcher
forthwith.
(M.S. Raman)
Judge
Laxmikant
Signature Not Verified
Digitally Signed
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
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Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Apr-2025 18:35:25
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