Allowed

Archana Saha v. Pranab Roy

Tripura HC16 May 2017Tr.P.(C)./4/2017

Case brief

AI extract

What is this about?

The High Court of Tripura allowed a transfer petition under Section 24 CPC, ordering a title suit for restitution of conjugal rights to be moved from Sonamura to the Family Court in Agartala. The transfer was granted based on the balance of convenience, considering the petitioner's obligation to care for her minor son while attending courts in Agartala for a pending maintenance case.

What did the court decide?

Directed the Additional District Judge, Sonamura to transfer File No. RCR/5/2016 to the Family Court, West Tripura, Agartala for disposal.

Archana Saha Vs Pranab Roy — Matrimonial and Divorce | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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Transfer Petition (C) No.4 of 2017

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Smt. Archana Saha (Roy), W/O. – Sri Pranab Roy, C/O. – Sri Gopal Saha, Bishalgarh, Routhkhola, Near Kali Mandir, Gulaghati Road, P.S. – Bishalgarh, Dist. – Sepahijala, Tripura.

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…. Wife Petitioner

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-: Versus :-

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Sri Pranab Roy, S/O. – Sri Kishore Roy, Resident of Vill Kalibazar, Rabi Gopal Para, P.S. – Melagarh, Dist. – Sepahijala, Tripura.

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….. Husband Respondent

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B E F O R E THE HON’BLE THE CHIEF JUSTICE

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Counsel for the petitioner : Ms. S. Deb Gupta, Advocate, Counsel for the respondent : Mr. H. Chakraborty, Advocate. Date of hearing : 16-5-2017. Date of delivery of Order : 01-6-2017.

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ORDER

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This transfer petition has been filed by the wife-petitioner under Section 24 of Code of Civil Procedure for withdrawing Title Suit (RCR) No. 5/2016 from the file of the learned Additional District Judge, Sonamura, West Tripura District to the file of the learned Judge, Family Court, West Tripura.

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The respondent, husband of the petitioner, filed the said suit for restitution of conjugal rights against the petitioner U/s 9 of the Hindu Marriage Act, 1956 before the learned Additional District Judge, Sonamura.

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Transfer Petition (C) No.4 OF 2017 Page 1 of 3

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The petitioner is apparently living with her minor-son at her parental house at Bishalgarh. She had also filed Misc. No. 395 of 2016 U/s 125 CrPC before the learned Judge, Family Court, Agartala for granting maintenance allowances for herself and her minor-son, and the same is pending for disposal. It is the case of the petitioner that it is very difficult as well as inconvenient for her to contest the suit filed by the respondent at Sonamura, particularly, when she has to attend to the daily needs of her minor-son. This is how this application came to be filed by her.

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Though the application is vehemently opposed by the respondent by filing a written objection, the fact remains that both the parties are now required to attend two courts at different places. The further fact that the petitioner is looking after her minor son is also not disputed by the respondent. Although the discretionary power of transfer of cases cannot be imprisoned within the straitjacket of any cast iron formula uniformly applicable to all situations, certain broad propositions as to what may constitute a ground for transfer can be deduced from the judicial decisions.─See Indian Overseas Bank, Madras v. Chemical

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Construction Co. and others, (1979) 4 SCC 358 . In Baburam Agarwalla v. Jamunadas Ramji & Co., AIR (38) 1951 Calcutta 239 , the Calcutta High Court observed that the balance of convenience is of prime consideration for transfer of 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. The Hon’ble High Court in the same decision had said, with respect and rightly so:

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“In determining the balance of convenience for the trial of a suit the Court has to take into consideration (1) the convenience or inconvenience of the plaintiff and the right of

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Transfer Petition (C) No.4 OF 2017 Page 2 of 3

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the plaintiff to choose his own forum, (2) the convenience or inconvenience of the defendant (3) the convenience or inconvenience of the witnesses required for a proper trial of the suit (4) the convenience or inconvenience of a 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 conveniences" and (5) the nature of issues in the suit.”

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In the instant case, both the parties are already attending the Courts located at Agartala in connection with the maintenance case filed by the petitioner, i.e. for a different cause of action. As the petitioner is required to take care of her minor-son, the inconvenience for her, if the case is transferred to Agartala, arguably far outweighs the inconvenience of the respondent. In other words, the balance of convenience lies in favor of the petitioner for transferring the suit to the Family Court at Agartala. Consequently, the petitioner has made out a case for transfer of the case to Agartala.

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For the reasons stated in the foregoing, this transfer petition succeeds. The learned Additional District Judge, Sonamura is directed to make over the file relating to Title Suit (RCR) No. 5/2016 to the learned Judge, Family Court, West Tripura, Agartala without any delay for disposal by the latter in accordance with law.

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CHIEF JUSTICE

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Transfer Petition (C) No.4 OF 2017 Page 3 of 3

Archana Saha v. Pranab Roy

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Archana Saha v. Pranab Roy

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