MANISHA KARKI Vs. DAULAT KHATIWADA
HIGH COURT OF SIKKIM
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BHASKAR RAJ PRADHAN ,J. -
(1.) An application for transfer of the proceeding pending before the learned Family Judge, West Sikkim at Gyalshing i.e. F.C. (Civil) Case No. 14 of 2020 filed by the respondent-husband against the petitioner-wife for divorce under Section 13(1) (ia) of the Hindu Marriage Act, 1955 has been filed by the petitioner under Sections 22, 24 read with Section 151 of the Code of Civil Procedure, 1908. The petitioner urges that the marriage of the petitioner and respondent was solemnised at Gangtok, East Sikkim; the petitioner who is the respondent in the divorce proceeding, at the time of presentation of the petition was residing in Gangtok, East Sikkim and continues to do so; the petitioner is unemployed and has no income of her own; a petition under Section 125 of the Code of Criminal Procedure, 1973 for maintenance filed by her is pending before the learned Judge, Family Court, East Sikkim at Gangtok i.e F.C. Case (Criminal) No.30 of 2020 and as the petitioner has recently delivered a stillborn baby, she has complications with her health and cannot travel the long and difficult distance between Gangtok to Gyalshing. The learned counsel representing the parties submits that the issues are yet to be settled before the Family Court, Gyalshing, West Sikkim in the proceeding.
(2.) Section 22 contemplates that where a suit may be instituted in any one of two or more courts and is instituted in one of such courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed. Section 24 relates to the general power of transfer given to the High Court as well as the District Court.
(3.) A reading of Section 19 of the Hindu Marriage Act, 1955 makes it clear that the present divorce proceeding filed by the respondent before the Family Court, Gyashing West Sikkim could have been filed at Gangtok as well, since the marriage was solemnised and that the petitioner-the respondent in the divorce petition at the time of presentation of the petition was residing at Gangtok and continues to do so.;
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