Wife's Convenience Should Decide Transfer of Matrimonial Suit, Rules Calcutta High Court

Kolkata: The Calcutta High Court has directed the transfer of a matrimonial suit and a case for guardianship of a minor child on the ground that the inconvenience of wife should be the prime consideration in deciding where the suit will be heard.

The court also held that when the application is in respect of the guardianship of a minor, it is to be filed in the court under whose territorial jurisdiction the minor, ordinarily resides.

Ordering the transfer of the suit from Jalpaiguri to Durgapur, Justice Bibek Chaudhuri observed that the Supreme Court has in a plethora of decisions held that inconvenience of the wife should be treated as the prime consideration in a proceeding seeking transfer of a case for trial arising out of a matrimonial suit.

The wife had prayed for transfer of the matrimonial suit and also a case seeking guardianship and custody of their child filed by the husband at the Jalpaiguri district court.

The woman is residing at her matrimonial home in Durgapur with their 13-year-old child, since she was allegedly abandoned by her husband in 2017, the petitioner's lawyer Uday Shankar Chattopadhyay said.

The husband had filed a suit for dissolution of marriage by a decree of divorce and also prayed for the custody of their son in another petition at the court of the district judge, Jalpaiguri.

Hearing the petition for transfer of the suit, Justice Chaudhuri noted that the petitioner has contended that distance between Durgapur and Jalpaiguri is more than 600km and it is not financially possible for her to bear such expenses for the journey to contest the suit.

The petitioner also stated that she has no income of her own and is fully dependent on her parents. Chattopadhyay claimed that the husband has not paid any maintenance for his wife and the son, who studies at a school in Durgapur.

Under such circumstances, the petitioner will of course suffer inconvenience to travel to Jalpaiguri from Durgapur, the court observed in a recent judgment.

Justice Chaudhuri observed that in the instant case the minor child ordinarily resides at Durgapur with his mother and is a student of a school there and therefore, the court of the additional district judge, Durgapur has the jurisdiction under the Guardians and Wards Act, 1890 to try the said miscellaneous case.

"Moreover, for the benefit of the minor child, the said miscellaneous case ought to be transferred to Durgapur for hearing and disposal," Justice Chaudhuri said in his order.