High Court
Case Details
2023:BHC-AUG:27138 1 174.M C A -256-2023.doc IN T H E H IG H C O U R T O F JU D IC A T U R E A T B O M B A Y B E N C H A T A U R A N G A B A D M IS C E LLA N E O U S C IV IL A PPLIC A T IO N N O . 256 O F 2023 D H A N A S H R E E K U N A L V YA S V E R S U S K U N A L A S H O K V YA S ... A dvocate for A pplicant : M r. D ipesh Punde M r. K unal A shok V yas, party in person present ... C O R A M : S H A ILE S H P. B R A H M E , J. R E S E R V E D O N : 18th D E C E M B E R 2023 PR O N O U N C E D O N : 22nd D E C E M B E R 2023 FIN A L O R D E R : . H eard finally the learned C ounsel for the applicant and M r. K unal V yas, respondent/party in person. 2. T he applicant is seeking transfer of the proceeding of Petition N o. A -902/2023 pending before the Fam ily C ourt at Pune to Fam ily C ourt at Jalgaon. S he resides at Jalgaon and prosecuting PW D V A N o.
Legal Reasoning
139/2023 in the C ourt of Judicial M agistrate, First C lass, Jalgaon. S he is unable to travel from Jalgaon to Pune independently and has to seek com pany of som ebody. S he is not in a position to effectively prosecute the proceeding of dissolution of m arriage, pending in the Fam ily C ourt at Pune. 2 174.M C A -256-2023.doc 3. T he respondent is earning handsom e salary and able bodied person. H e can attend the proceeding from Pune to Jalgaon. C onsidering the law laid dow n in the m atter of S um a ti S ingh V s. K um ar S anjay, 2002 (A IR ) S C 396; A nita V s. B alkrishna reported in 2011(3) B om .C .R .866; C haya V s. B alaji reported in 2011(2) B om .C .R .625, her application deserves to be allow ed. 4. T he respondent has filed affidavit-in-reply, challenging the pleadings and the subm issions of the applicant. H e has produced First Inform ation R eport registered w ith S hanipeth Police S tation, death certificate of his father, papers of his ailm ent of G rade-2 bleeding Internal H aem orrhoids, photographs, conversation of W hatsapp, exchange of notices etc. 5. T he respondent w ho is party in person has tendered across bar w ritten notes of argum ents. H e m ade oral subm issions also.
Legal Reasoning
A ccording to him all the contentions and grounds in the application are false. T he applicant is taking disadvantage of lenient approach of the C ourt. H e has vehem ently subm itted that the applicant is w orking as D eputy M anager in the Yes B ank and having handsom e salary. T he present case is exception one w herein the discretio n m ay not be 3 174.M C A -256-2023.doc exercised in favour of w ife. H e has subm itted that false and baseless allegations are leveled by the applicant. T he proceeding initiated by her are frivolous. H e has explained the circum stances and his disability in attending the m atter at Jalgaon if the m atter is transferred. H e has placed reliance on follow ing judgm ents. (i) (ii) D elm a Lubna C oelho V s. E dm ond C lint Fernandes N .C .V . A ishw arya V s. A .S . S aravana K arthik S ha (iii) Priti S harm a V s. M anjeet S harm a 6. B esides that follow ing w ritten statem ents/argum ents are advanced by the respondent : (i) T he contention of the applicant that she is unable to m aintain herself is false and m isleading. S he has secured prestigious job of D eputy M anager in Yes B ank. It is not disputed by the applicant. (ii) It is false to state that she is unable to attend the proceeding at Pune and inconvenience w ould be caused. T he respondent w as constrained to file proceeding at Pune. T he applicant did not initiate proceeding prom ptly despite the request m ade to her. (iii) T he applicant is having accom m odation at Pune, is denied. S he can travel for the official w ork. H er cousin sister and brother-in-law are from Pune, w here she can reside. (iv) T he respondent w ants to exam ine various w itnesses from Pune. It is inconvenient to take them to Jalgaon. 4 174.M C A -256-2023.doc (v) T here are m alafide intentions in filing application fo r transfer. T he applicant has lodged FIR and the proceeding for dom estic violence against the respondent. (vi) T here is hardship and inconvenience to the respondent and his fam ily. T he respondent is only bread-earner. H e lost his father in 2017. H e has to look after his aged m other and unm arried sister. (vii) T he respondent is suffering from grade-2 bleeding Internal H aem orrhoids. (viii) It is not safe for the respondent to attend proceeding at Jalgaon. T here is a life threat to him . (ix) In view of the guidelines laid dow n by the S uprem e C ourt and various C ourts, the application is liable to be rejected w ith costs. 7. T here is plethora of judgm ents to lay dow n that inconvenience of a w ife be taken into account in the m atters of transfer. Few such judgm ents are as follow s : A . B . C . D . E . S um ita S ingh V s. K um ar S anjay reported in (2001) 10 S C C 41. S om a C haudhury V s. G ourab C houdhaury reported in (2004) 13 S C C 462. V aishali S hridhar Jagtap V s. S hridhar V ishw anath Jagtap reported in (2016) 14 S C C 356. S angam itra R am akant R oyalw ar V s. R am akant G angara m R oyalw ar reported in 2009 (1) M h.L.J. 303. A nita B alkrishna B arge V s. B alkrishna S opan B arge reported in 2011(1) M h.L.J. 518. 5 174.M C A -256-2023.doc F. G . H . M ahadevi G opal M ehetre V s. G opal Prabhakar M ehetre reported in 2016(4) A ll M .R . 599. Judgm ent and order dated January 11, 2019 in M isc. C ivil A pplication N o.171/2018 in the m atter of Pooja R oha n Jadhav V s. R ohan R am esh Jadhav. Judgm ent and order dated 01 July 2022 in M isc. C ivil A pplication N o.46/2020 in the m atter of A shw ini K ailas Patil V s. S hivajirao A nandrao G aekw ar. 8. T he subm issions of the respondent are m ainly on the m erits of the cases lodged by the applicant as w ell as the m erits of the petition for dissolution of m arriage betw een the parties. T he m atters are required to be adjudicated before the C om petent Forum . T his C ourt is not a fact finding authority. A ll these are disputed questions of facts. T his C ourt is not in a position to hold that the proceeding initiated by the parties against each other, are false or m alicious or m eritorious. T herefore, the m ost of the subm issions of the respo ndent are liable to be rejected. 9. T he respondent is resident of Pune and rendering services at Pune. It is not possible to m ake any com m ent on the gravity of his alleged ailm ent. T he inconvenience due to the responsibility of m other and unm arried sister, cannot be of unusual or startling nature so as to 6 174.M C A -256-2023.doc hold that he is unable to travel to Jalgaon. H e is able to prosecute present m atter in person effectively in H igh C ourt. H e can avail the facility of video conferencing. 10. T he inconvenience and the hardship as contended by the respondent for bringing w itnesses from Pune to Jalg aon also cannot be of such nature to reject application for transfer of the applicant. S o far as his safety for attending the m atter at Ja lgaon is concerned, the law has provided safeguard. It cannot be presum ed that the applicant or her fam ily m em bers w ould com m it any overt act. T he applicant is w orking as D eputy M anager in Yes B ank. S he is educated and able body. 11. It appears that she is required to travel to few places to discharge official duty. S he is econom ically independent lady. H ow ever, inconvenience and hardship cannot be tested to the touchstone of econom ic independence of a lady. H aving good source of incom e is one of the param eters. 12. S he has to travel from Jalgaon to Pune a distance o f about 455 K m s. to attend the proceeding cannot be overlooked. T here is no 7 174.M C A -256-2023.doc close relative of the applicant at Pune except her cousin sister or distant brother. H er incom e, education and sound financial condition do not m itigate the hardship and sufferings likely to cause to attend proceeding from Jalgaon to Pune. 13. I find that the applicant has m ade out a case for transferring the proceeding. I propose to im pose certain conditions w hich w ould facilitate the sm ooth attendance of the respondent. 14. T he judgm ents cited by the respondent do not enure to his help. E ach case has to be considered on its ow n m erits. I have considered the ratio laid dow n by the S uprem e C ourt in the m atters of D elm a Lubna C oelho (supra) paragraph no.18; N .C .V . A ishw a rya (supra) paragraph no.9 and order of S uprem e C ourt in the m a tter of Priti S harm a (supra). 15. W hile considering application under S ection 24 of the C ode of C ivil Procedure, the C ourt m ust com e to objective satisfaction for transfer. N orm ally in case of transfer, the discretion tilts in favour of w ife. H ow ever this is not a rule of thum b. T here can be exceptions. I do not find any case is m ade out to exercise discretion in favour of respondent. 8 174.M C A -256-2023.doc 16. For the reasons stated above, I pass follow ing order. i. ii.
Decision
O R D E R T he M iscellaneous C ivil A pplication is allow ed. T he proceeding bearing Petition N o. A -902/2023 pending before the Fam ily C ourt at Pune, shall stand transferred to the Fam ily C ourt at Jalgaon. iii. T he record and proceedings shall be transm itted fro m Fam ily C ourt at Pune to Fam ily C ourt at Jalgaon forthw ith. iv. T he parties to appear before the Fam ily C ourt at Ja lgaon on 24.01.2024. v. T he parties shall cooperate for listing all the pro ceedings betw een them on a day before different fo rum at Jalgaon. vi. T he parties are at liberty to request for availing the facility of video conferencing to the Presiding O fficer. vii. T he Fam ily C ourt at Jalgaon is requested to dispose of the proceedings expeditiously. [ S H A ILE S H P. B R A H M E , J.] Najeeb.