Smti Sukla Mallick Saha Vs Dinku Saha

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Page No.# 1/9

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GAHC010247202025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Tr.P.(C)./79/2025

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SMTI SUKLA MALLICK SAHA

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W/O SRI DINKU SAHA, D/O LATE NAKUL CHANDRA MALLICK, R/O MALIGAON, B.G. COLONY, SATI JOYMATI NAGAR, GUWAHATI-781011, P.O.- MLG. RLY. HQRS., P.S.- JALUKBARI, DIST- KAMRUP (M), ASSAM

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VERSUS

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DINKU SAHA

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S/O LATE DIGENDRA CHANDRA SAHA, R/O NAHARKATIA DAILY BAZAR, P.O. AND P.S.- NAHARKATIA, DIST- DIBRUGARH, ASSAM, PIN-786610

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Advocate for the Petitioner : MR. N AHMED, MR. N HOQUE,MR. S DAS

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Advocate for the Respondent : MR M BARMAN, P BURAGOHAIN

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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10.03.2026

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Heard Mr. N. Ahmed, learned counsel for the petitioner. Also heard Mr. M. Barman, learned counsel for the respondent.

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2. This petition, under Section 24 of the CPC, is preferred by the petitioner

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for transferring Title Suit (D) No. 55/2025, pending before the Court of learned Additional District Judge, Dibrugarh to the Court of learned Principal Judge, Family Court, Kamrup(M) at Guwahati.

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3. Mr. Ahmed, learned counsel for the petitioner submits that the petitioner is the wife of the respondent, who had instituted Title Suit (D) No. 55/2025, under Section 13(i) of the Hindu Marriage Act, 1954, before the Court of learned Additional District Judge, Dibrugarh for dissolution of their marriage. Mr. Ahmed also submits that the petitioner and the respondent got married on 19.06.2024, as per Hindu rights and customs, and thereafter, they resided together as husband and wife at the matrimonial home at Naharkatia in the Dibrugarh district. Mr. Ahmed further submits that after some days of their marriage, marital discord surfaced between the parties, and presently the petitioner is residing at her parental abode at Guwahati. Mr. Ahmed also submits that thereafter, the respondent herein had instituted the suit for dissolution of their marriage on the ground of cruelty, and that since the petitioner herein resides at Guwahati, it is not possible on her part to undertake journey to Dibrugarh, which is situated at a distance of 440 k.m. from Guwahati, and to pursue and to contest the suit filed by the respondent herein; and that the marriage was solemnized at Kamakhya Temple at Guwahati, and as such, the learned Principal Judge, Family Court, Kamrup(M) at Guwahati has the jurisdiction, and under such circumstances, Mr. Ahmed has contended to transfer the suit from the Court of learned Additional District Judge, Dibrugarh to the Court of learned Principal Judge, Family Court, Kamrup(M) at Guwahati.

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3.1. In support of his submission, Mr. Ahmed has referred to two decisions of Hon’ble Supreme Court in the cases of Sumita Singh vs. Kumar Sanjay and Anr. , reported in (2001) 10 SCC 41 ; and N.C.V. Aishwarya vs. A.S.

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Saravana Karthik Sha , reported in 2022 0 Supreme(SC) 1221 .

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4. Per contra, Mr. Barman, learned counsel for the respondent, by referring to the objection filed by the respondent, submits that though convenience of the wife is always taken care of while dealing with a petition for transfer, yet that is not always applicable in all the facts and circumstances. Mr. Barman submits that the respondent had instituted the suit for dissolution of the marriage on the ground of cruelty, under Section 13(i) of the Hindu Marriage Act, 1954, and in order to establish the cruelty, he has to examine his age old mother and also the neighbours, and that it would not be possible on his part to bring all those witnesses to Guwahati. Mr. Barman also submits that the petitioner herein may enter appearance through Video Conferencing also, and under such circumstances, he has contended to dismiss the petition.

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4.1. In support of his submission, Mr. Barman has referred to a decision of the Madhya Pradesh High Court in the case of Ekta Vaish vs. Deepak Kuchbandiya , reported in 2026 SCC OnLine MP 1352 ; and also a decision of Hon’ble Supreme Court in the case of Anindita Das vs. Srijit Das , reported in (2006) 9 SCC 197 .

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5. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record, and also gone through objection filed by the respondent herein and the decisions referred by learned counsel for both the parties.

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6. Section 24 of the CPC provides for transfer of a suit. It reads as under:-

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“ (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any

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stage

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(a) Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

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(b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

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(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which¹ [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

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(3) For the purposes of this section,

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(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

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(b) Proceeding includes a proceeding for the execution of a decree or order].

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(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court

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of Small Causes.

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(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it .”

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7. It the instant case, the applicable provision is 24(1)(ii) of CPC. Before a discussion is directed into the issue, it would be in the interest of justice to understand the principles, governing transfer of cases, presently occupying the field.

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8. In the case of Indian Overseas Bank vs. Chemical Construction Company , reported in (1979) 4 SCC 358 , while dealing with considerations that has to be taken into account for transferring a case, the Hon’ble Supreme Court has held as under :-

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“ 16. The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the law allows him. The court should not lightly change that forum and compel him to go to another court, with consequent increase in inconvenience and expense of prosecuting his suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer.

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17. As compared with Section 24, the power of transfer of civil proceeding to another court, conferred under the new Section 25 on the Supreme Court, is far wider. And, so is the amplitude of the expression, “expedient in the interest of justice” which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another court, is a question which depends on the circumstances of the particular case.”

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9. There is, however, unanimity of opinion that ‘ balance of convenience’

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is the prime consideration for transfer of a suit. The expression ‘ balance of convenience’ has inspired profound legal thought and has acquired the gloss of many judicial interpretations. Restated in simple terms, it is a question of fact in each case. ‘ Balance of convenience’ is neither the convenience of the plaintiff alone nor of the defendant alone, but the balance of convenience of both. In determining the balance of convenience for the trial of a suit, the Court has to take into consideration the following:-

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“ (1) Convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his own forum;

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(2) Convenience or inconvenience of the defendant;

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(3) Convenience or inconvenience of the witnesses required for a proper trial of the suit;

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(4) Convenience or inconvenience of the particular place of trial having regard to the nature of the evidence on the main points involved in the suit and also having regard to the doctrine of ‘forum convenience’; and

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(5) Nature of issues in the suit.” (Ref. Baburam Agarwalla vs. Jamunadas Ramji And Co. reported in AIR 1951 Cal 239)”

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10. Again, in the case of Mrs. Maneka Sanjay Gandhi and Anr. vs. Ms. Rani Jethmalani , reported in (1979) 4 SCC 167, Hon’ble Supreme Court has emphasized the necessity to ensure fair trial, observing as hereunder:-

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“ Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant

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environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances.”

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11. Although, Mrs. Maneka Sanjay Gandhi (supra), relates to a criminal case, yet the context is same i.e. transfer. Therefore, this Court is of the view that the principle enunciated therein can be applied in other cases also.

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12. Thus, it appears that though the plaintiff is dominus litis , yet, the aforesaid right can be interfered with by the court on consideration of several factors and out of the same ‘ balance of convenience’ is the prime consideration.

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13. It is not in dispute that the present petitioner is residing at Guwahati in her parental abode, whereas the respondent is residing at Naharkatia, under the jurisdiction of the learned Additional District Judge, Dibrugarh. It is a fact that transferring of all matrimonial suits to the place where the wife is residing is not always the rule, but in the case in hand, the petitioner is indisputably residing in Guwahati, which is located at a distance of 440 k.m. from Dibrugarh, where the respondent had instituted the divorce proceeding. Therefore, it may not be possible on her part to contest the suit filed by the respondent on each and every date undertaking a journey of 440 k.m.

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14. Further, it appears that the marriage was solemnized at Kamakhya Temple at Guwahati and as such, the learned Principal Judge, Family Court, Kamrup (M) at Guwahati has also the jurisdiction to try the suit.

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15. This court has considered the submission of Mr. Barman, the learned counsel for the petitioner. And also gone through the decisions referred by him. No doubt the ratio laid down in the cases referred by his fortified his submission. However, in the case of Anindita Das(supra) the respondent was willing to pay all the expenses for travel and stay of the petitioner and her companion. This is not the position here. No such submission by the learned counsel for the petition was made and also no such averment in the objection was made. And that being so, the said case is clearly distinguishable on fact from that of the facts of the present case, and as such it would advance his argument. Though Mr. Barman submits that the petitioner herein can enter appearance through the VC, conversely, the respondent herein can also do the same. While the respondent has to prove the cruelty by examining his mother and neighbours, the petitioner may also examine witnesses to rebut the allegation of cruelty.

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16. This court has also gone through the decisions referred by Mr. Hoque, in (i) Sumita Singh (supra) and (ii) N.C.V. Aishwarya (supra) and in both the cases Hon’ble Supreme Court has taken the view in favour of the wife and the said decisions lends support to the contention made by him.

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17. Thus, having taken note of all the facts and circumstances, this Court finds sufficient merit in this petition and accordingly, the same is allowed. It is provided that Title Suit (D) No. 55/2025, pending before the Court of learned Additional District Judge, Dibrugarh stands transferred to the Court of learned Principal Judge, Family Court, Kamrup(M) at Guwahati.

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18. The petitioner shall obtain a certified copy of this order and place the same before the learned Additional District Judge, Dibrugarh, and on receipt of

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the same, the learned Additional District Judge, Dibrugarh shall take necessary steps for transmitting the record to the Court of learned Principal Judge, Family Court, Kamrup(M) at Guwahati.

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19. In terms of above, this transfer petition stands disposed of.

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20. Interim order passed earlier stands vacated.

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J U D G E

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Comparing Assistant

Smti Sukla Mallick Saha v. Dinku Saha

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Smti Sukla Mallick Saha v. Dinku Saha

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