Smt. Bhanita Kalita Vs Bikash Ranjan Das

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GAHC010276932025

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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)./93/2025

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SMT. BHANITA KALITA

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WIFE OF SRI BIKRAM RANJAN DAS, DAUGHTER OF LATE KHANINDRA DAS, RESIDENT OF HOUSE NO. 18, LALMATI, NEAR IIE, BYE LANE GANESHPUR, P.O. AND P.S.- BASISTHA, DIST- KAMRUP (M), ASSAM, PIN781029

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VERSUS

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BIKASH RANJAN DAS

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SON OF DR. MAANORANJAN DAS, RESIDENT OF VILLAGE- KAHARPARA, SARUPETA, P.O.- SARUPETA, P.S.- PATACHARKUCHI, DISTRICT- BAJALI, ASSAM, PIN-781318

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Advocate for the Petitioner : MR. DITUL DAS, MR. B J TALUKDAR,MR. M P SARMA,MR NABENDU PATHAK

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Advocate for the Respondent : MR P P MEDHI, MS. U ROY,MAYURI GOGOI,MR G BARGAYARY

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BEFORE

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HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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06.04.2026

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Heard Mr. D. Das, learned counsel for the petitioner. Also heard Mr. P.P. Medhi, learned counsel for the respondent.

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2. This petition, under Section 24 read with Section 151 of the CPC, is

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preferred by the petitioner for transferring Misc. G.C. Case No. 04/2022 and connected Misc. (J) Case No. 13/2023, with all the petitions, pending before the Court of learned District Judge, Bajali, to the Court of learned District Judge, Kamrup (M) at Guwahati.

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3. Mr. Das, learned counsel for the petitioner, submits that the petitioner is the wife of the sole respondent and they got married on 04.10.2015 as per social custom and rites and thereafter they lived together as husband and wife in the matrimonial home at Sarupeta, Patacharkuchi and out of their wedlock, one baby girl born to them. He further submits that thereafter, marital discord surfaced between them and ultimately the petitioner had to leave the matrimonial home, and since then she has been taking shelter, with their minor child, at her parental abode at Guwahti. Thereafter, petitioner had preferred the F.C. (Crl.) Case No. 589/2022, under Section 125 Cr.P.C., before the Principal Judge, Family Court, at Guwahati seeking maintenance from the respondent. Then the respondent has filed the Miscellaneous Guardianship Case No. 4/2022, before the court of learned District Judge at Bajali. The said guardianship certificate case has been filed in contravention to the jurisdictional statutory provision of the Guardianship and Wards Act, 1890 as it ought to have been filed at the place where the child is residing. Mr. Das also submits that the petitioner is suffering from different health issues and also she has minor daughter and leaving her at Guwahati she cannot undertake travel to Bajali to contest the said petition and over and above she has no source of her income. Under such circumstances Mr. Das contended to allow this petition and the transfer the Miscellaneous Guardianship Case No. 4/2022, from the court of learned District Judge at Bajali to the court of learned Principal Judge, Family Court at Kamrup (M) at Guwahati.

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3.1. In support of his submission, Mr. Das has referred to a decision of Hon’ble Supreme Court in the case of N.C.V. Aishwarya vs. A.S. Saravana Karthik Shah, (Civil Appeal No (S), 4894 of 2022 (Arising out of SLP. (C)No(s) 16465 of 2021).

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4. Per contra, Mr. Medhi, learned counsel for the respondent has vehemently opposed the petition. Mr. Medhi submits that though no objection petition is filed by the respondent, yet the respondent is not in a position to concede to the prayer of the petitioner. Referring to a decision of Hon’ble Supreme Court in Anindita Das vs. Srijit Das, Transfer Petition Civil No.(S). 191 of 2005, with Transfer Petition (C) No.146 of 2005, Mr. Medhi submits that in the prevailing socio economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer, yet leniency cannot be considered always as the same is being misused by the women. He also submits that like the respondent in the aforesaid petition, the respondent herein also shall pay all travel and stay expenses of the petitioner and her companion for each and every occasion when she is required to attend the Court at Bajali. Under such circumstances Mr. Medhi has contended to dismiss this petition.

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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 the decisions referred by 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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6.1. 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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6.2. 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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6.3. 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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6.4. 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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6.5. 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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6.6. 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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6.7. Further, it is well settled in the case of Anindita Das(supra) that 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.

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6.8. In the case of Anindita Das (supra) Hon’ble Supreme Court has held that the cardinal principle for exercise of power under Section 24 CPC is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. It has also been held that when two or more proceedings are

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pending in different Courts between the same parties, which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.

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7. It is to be noted here that the gguardianship cases in India are primarily governed by the Guardians and Wards Act, 1890, and must be filed in the District Court (or Family Court where applicable) based on the minor's ordinary residence or property location. Section 9 of the said Act provides for Court having jurisdiction to entertain application. Sub-Section 1 provides that - If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Section 9(2) provides for filing of application either in the court of the minor's ordinary residence or where they hold property; when the application is filed in respect of property of the minor and the courts may transfer if more convenient elsewhere.

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8. In the instant case, indisputably, the minor in respect of whose guardianship the application was filed, is residing with the petitioner herein, who has been residing in her parental abode, at Guwahati. Therefore, as mandated by SubSection 1 to Section 9 of the Guardians and Wards Act, 1890 the petitioner ought to have been filed at Guwahati. But, instead, the respondent herein had opted to file the same in the Court of learned District Judge at Bajali. In view of the mandate of the said Section, the submission of Mr. Das, learned counsel for the petitioner, bears sufficient force.

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8.1. It is also not in dispute that another case, being F.C. (Crl.) Case No. 589/2022, under Section 125 Cr.P.C., is pending before the Principal Judge,

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Family Court, at Guwahati so filed by the petitioner herein, seeking maintenance from the respondent. As held in the case of Anindita Das (supra) by Hon’ble Supreme Court the cardinal principle for exercise of power under Section 24 CPC is that the ends of justice, and when two or more proceedings are pending in different Courts between the same parties, which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.

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8.2. Though the issue involved and the question of facts in the both the proceeding here are different, yet decisions in the cases would be interdependent, since the minor, whose guardianship is being sought for, in the Miscellaneous Guardianship Case No. 4/2022, the issue of granting maintenance in her favour is also involved in F.C. (Crl.) Case No. 589/2022, under Section 125 Cr.P.C., which is pending before the Principal Judge, Family Court, at Guwahati.

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8.3. Under such circumstances also it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.

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8.4. Further, the petitioner herein has no source of income to contest the proceeding before the court at Bajali, by undertaking a tedious journey from Guwahati on each and every date leaving her minor daughter at Guwahati. Though Mr. Medhi, learned counsel for the petitioner submits that like the petitioner in the case of Anindita Das(supra) the respondent herein is also ready to bear the expenditure yet, weighing the dominus litis , of the respondent with that of the balance of convenience, which is one of the prime consideration in a petition under Section 24 CPC, this court has found the balance tilting in

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favour of the ‘ balance of convenience’ of the petitioner, besides the mandate of Sub-Section 1 to Section 9 of the Guardians and Wards Act, 1890.

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8.5. In the result, this court finds sufficient merit in this petition, and accordingly, the same stands allowed. Consequently, Miscellaneous Guardianship Case No. 4/2022, alongwith connected Misc Case, if any, pending before the court learned District Judge, Bajali, stands transferred to the court learned Principal Judge, Family Court No.1, Kamrup, at Guwahati, where the F.C. (Crl.) Case No. 589/2022, under Section 125 Cr.P.C., which is pending.

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9. The petitioner shall obtain a certified copy of this order and place the same before the learned District Judge, Bajali, and on receipt of the same, the learned District Judge, Bajali, shall take necessary steps for transmitting the record of Miscellaneous Guardianship Case No. 4/2022, to the Court of learned District Judge, Kamrup (M) at Guwahati.

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10. In terms of above, this transfer petition stands disposed of. Interim order passed earlier stands vacated.

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JUDGE

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Comparing Assistant

Smt. Bhanita Kalita v. Bikash Ranjan Das

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Smt. Bhanita Kalita v. Bikash Ranjan Das

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