1 crap2396.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPLICATION NO. 2396 OF 2012
Sow. Rutuja @ Mitrali w/o Mahesh Desai,
age 33 years, occ. Service,
r/o A-103, Mulund Sinddhi C.H.S.,
Opp. Eastern Express Highway,
Mhada Colony, Mulund (East),
MUMBAI-400 081. ...Applicant
VERSUS
Mahesh s/o Madhukarrao Desai,
age 35 years, occ. Service,
r/o Satyajeet Hostel, Pannalal Nagar,
Room No.118/B, Aurangabad. ...Respondent
.....
Shri Bhushan B.Kulkarni, advocate for applicant
Shri Avinash S. Deshpande, advocate for respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATED : 4th October, 2012.
ORAL JUDGMENT :-
1. Heard the respective learned counsel for the parties.
Both the learned counsel submit that there is no necessity to carry out the amendment as per leave granted on the last date, and hence, proposed amendment stands deleted.
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2. Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the application is taken up for final hearing.
3. By the present application, preferred under Section 482 of the Code of Criminal Procedure, the applicant (wife) prayed that the Petition No. E-237 of 2009, pending before the Family Court, Aurangabad be transferred to the Family Court, Mumbai.
4. The applicant herein filed the Petition No. E-237 of 2009 under Section 125 of the Code of Criminal Procedure, seeking maintenance before the Judge, Family Court, Aurangabad and copy thereof is annexed herewith at Exh.'A'.
5. The respondent (husband) appeared in the said petition and filed his reply therein and denied the contentions of the applicant and contested the said application and the copy of the said reply is annexed herewith at Exh. 'B'.
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6. It is the grievance of the applicant that during the pendency of the said petition, the applicant was dragged out of the home by the respondent, and hence, the applicant is residing at Mumbai with her parents. Therefore, the applicant filed the application (Exh.25) in Petition No. E-237 of 2009 before the Family Court, Aurangabad requesting to transfer the said proceeding i.e.Petition No. E-237 of 2009 from the Family Court, Aurangabad to the Family Court, Mumbai. It is specifically contended in the said application that usually applicant's son remains sick and due to her regular attendance in the court he is unable to attend the school, and hence, his education is being affected. It is further contended in the said application that the applicant was not granted any maintenance till filing of the application. However, the said application was disposed of by the Family Court, Aurangabad observing that the applicant to move proper forum for transfer as per law.
7. It is also the contention of the applicant that though the proceeding for maintenance is filed long back, but till filing of the present application, no interim maintenance has been granted in favour of the applicant. Moreover, the applicant is constrained to ::: Downloaded on - 09/06/2013 19:13:26 ::: 4 crap2396.12 travel from Mumbai to Aurangabad due to afore said proceeding and it affects the school and education of the child. So also, due to frequent travelling, she suffers from economic problems without source of any income. Hence, the applicant seeks transfer of the Petition No. E-237 of 2009 from the Family Court, Aurangabad to the Family Court, Mumbai in accordance with law.
8. To substantiate the afore said contentions, the learned counsel for the applicant relied upon the judicial pronouncement in the case of Sangmitra Ramakant Royalwar vs Ramakant Gangaram Royalwar, reported at 2009 (1) Bom.C.R.316, wherein it is observed that in matrimonial proceedings filed against them by their respective husbands, the wives request for transfer of proceedings from the place of the institution to the place where the applicants reside with their parents. Their plight and sufferings are germane, and hence, their ordinary residence with parents gives them a cause and reason to seek the order of transfer of the proceedings.
9. Learned counsel for the applicant also relied upon the ::: Downloaded on - 09/06/2013 19:13:26 ::: 5 crap2396.12 judicial pronouncement of the Apex Court in the case of Sumita Singh vs Kumar Sanjay and anr., reported at AIR 2002 SC 396, wherein it is observed that :-
"3. It is the husband's suit against the wife. It is the wife's convenience that therefore,must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute.
4. Accordingly, Matrimonial Case No. 30 of 2000 pending before the VIth Additional District and Sessions Judge, Ara, Bhoipur, Bihar shall stand transferred to the District Judge, Delhi, who shall hear it himself or assign it for hearing to an appropriate forum."
10. Learned counsel for the respondent opposed the present application vehemently and submitted that the respondent's father is a Trustee of the School, namely Pedingdam International School. Hence, it is canvassed that the argument advanced by the learned counsel for the applicant that the school education of applicant's son is being affected, bears no substance. It is also submitted by the learned counsel for the respondent that the Petition No. E-237 of 2009 is at the stage ::: Downloaded on - 09/06/2013 19:13:26 ::: 6 crap2396.12 of recording of evidence before the Family Court, Aurangabad and the said evidence can be completed within few days, and therefore, there is no necessity to transfer the said petition from the Family Court, Aurangabad to the Family Court, Mumbai. He further submitted that the respondent has filed petition for divorce bearing A-157 of 2009 and same is pending before the Family Court, Aurangabad and the said petition is also at the stage of recording of evidence. He further submitted that the petition No. 13 of 2010 filed by the applicant for restitution of conjugal rights is also pending before the Family Court, Aurangabad and same is also at the stage of recording of evidence. Hence, the learned counsel for the respondent contended that accordingly three matrimonial matters between the applicant and the respondent are pending before the Family Court, Aurangabad and out of the said three matrimonial matters, transfer of only present Petition No. E-237 of 2009 to the Family Court, Mumbai from the Family Court, Aurangabad, as prayed for by the applicant, would cause prejudice to the other matters and would also cause inconvenience to the parties and witnesses. Accordingly, he urged that present application is devoid of any merits and same bears no substance, and ::: Downloaded on - 09/06/2013 19:13:26 ::: 7 crap2396.12 therefore, same be dismissed.
11. I have perused the contents of the present application, its annexures and considered the rival submissions advanced by the learned counsel for the parties and the judicial pronouncements cited by the learned counsel for the applicant carefully.
12. At the out set, the Petition No. E-237 of 2009 filed by the applicant seeking maintenance is pending before the Family Court, Aurangabad since 2009 i.e. almost for last three years.
Admittedly, no interim maintenance has been granted to the applicant herein in the said application. Further admittedly the applicant is residing at Mumbai, as contended by her, along with her parents. Moreover, indisputably the applicant has preferred an application (Exh.25) in Petition No. E-237 of 2009 before the Family Court, Aurangabad to transfer the said petition from the Family Court, Aurangabad to the Family Court, Mumbai.
However, although the said application was not allowed by the said court observing that the applicant to move before the proper forum for the said prayer, it is specifically contended in the said ::: Downloaded on - 09/06/2013 19:13:26 ::: 8 crap2396.12 application that the respondent dragged her out of the home, and therefore, she has no alternative than to reside at Mumbai along with her parents and further her son usually keeps ill-
health and due to attendance of the dates of the proceedings, his education is being affected and the said contentions cannot be ignored. Moreover, it is also specifically averred in the present application by the applicant that her child is of ill-health and because of the proceedings at Aurangabad, the applicant is constrained to travel from Mumbai to Aurangabad, which affects the presence of her child at the school, and consequently, affects his school and the said averments conform with the contentions made by the applicant in the application before the Family Court, Aurangabad, which was preferred long back on 1.2.2012.
13. Apart from that, the applicant has categorically stated in the present application that all the while she is required to travel from Mumbai to Aurangabad to attend the dates of the Petition No. E-237 of 2009, which affects her economically also, since she has no source of income and said aspect also cannot be lost sight of. Moreover, as observed by Hon'ble Supreme ::: Downloaded on - 09/06/2013 19:13:26 ::: 9 crap2396.12 Court in the case of Sumita Singh vs Kumar Sanjay and anr.
(supra), the wife's convenience i.e. convenience of the applicant is required to be looked into. Moreover, when the wife requested for transfer of the proceedings from the place of its institution to the place where the applicant-wife is residing with her parents, her plight and sufferings are germane, and her ordinary residence with parents gives her a cause and reason to seek the order of transfer of the proceedings as observed in the case of Sangmitra Ramakant Royalwar vs Ramakant Gangaram Royalwar (supra).
14. I am not oblivious of the fact that other two proceedings i.e. Petition A-157 of 2009 filed by the respondent for divorce is pending before the Family Court, Aurangabad, as well as Petition No. 13 of 2010 filed by the applicant for restitution of conjugal rights is also pending before the Family Court, Aurangabad, but the Petition No. E-237 of 2009 sought to be transferred by the applicant herein pertains to the matter of maintenance relating to livelihood of the applicant, and further, as mentioned herein above, convenience of the applicant-wife who is residing along with her parents at Mumbai is pivotal, and ::: Downloaded on - 09/06/2013 19:13:26 ::: 10 crap2396.12 therefore, the Petition No. E-237 of 2009 deserves to be transferred from the Family Court, Aurangabad to the Family Court, Mumbai to decided it in accordance with law, in the interest of justice.
15. In the result, present application is allowed in terms of prayer clause 'B' thereof and the Petition No. E-237 of 2009, pending on the file of learned Judge, Family Court, Aurangabad be transferred to the Principal Judge, Family Court, Mumbai forthwith, who shall assign the same before any appropriate Judge of Family Court, Mumbai to decide it, in accordance with law.
16. The parties are directed to appear before the learned Principal Judge, Family Court, Mumbai on 5.11.2012 at 11.00 a.m.
17. Rule is made absolute in the afore said terms.
(SHRIHARI P. DAVARE, J.) dbm/crap2396.12 ::: Downloaded on - 09/06/2013 19:13:26 :::