Smruti Navin Naulakha vs Navin Subhash Naulakha
2002 Latest Caselaw 401 Bom

JUDGMENT

J.G. Chitre, J.

1. This transfer petition has been filed by one Smruti Navin Naulakha who happens to be the respondent in Family Court Petition No. A-1038 of 2001 which is pending before Court No. 6 of Family Court at Bandra intending towards achieving the goal of dissolution of marriage by decree which has been filed by Navin Subhash Naulakha. Smruti called hereinafter for convenience as wife and Navin would be called for convenience as husband in the course of this order. The wife has filed this petition with a prayer to withdraw it from said Court No. 6 of Family Court, Bandra and to transfer for the decision according to law to Family Court, Pune. The spouses have an offspring out of the said wedlock, who happens to be a female child aged about 21/2 years old at present. Her name is Abha.

2. In the present petition, wife has put forth her difficulties which she would face, according to her in attending said Family Court for trial of said matrimonial petition. The husband has resisted the said prayer of transfer by putting forth his difficulties. He submitted that this transfer petition is filed only for the purpose of putting extra pressure on the husband by wife for getting a better monetary bargain in the settlement. It has been submitted on behalf of the wife that wife does not intend to do that but her more important object is to protect the interest of her daughter Abha. This submission came forth on account of the averment made on behalf of the husband during the pendency of the said matrimonial petition in Family Court No. 6, Bandra that there was a talk of settlement between the spouses and a draft was prepared mentioning the terms and conditions, which was presented before the said Court but at last moment the wife turned and said no to said settlement. It has been alleged by the husband that wife wants to extract money from the husband which has been denied by saying that she does not want anything for herself but she wants some monetary arrangement to be made for Abha and interest of Abha should be protected throughout Abha's life and when she saw that she was made to sign on the said settlement deed without giving anything to Abha she declined the said settlement.

3. For transferring the said matrimonial petition from Family Court, Bandra to Family Court, Pune the wife has submitted that it would be a hardship to her and her daughter Abha, if they are required to attend the Family Court, Bandra on every date of hearing because she will have to bring Abha with her and that would be causing hardship to Abha. It has been also submitted that in coming June, Abha would be admitted to "play group" at Pune school and it would be very difficult for wife to take her to Mumbai for attending the hearing of matrimonial petition. The husband has submitted that the wife happens to be a Chartered Accountant and therefore, it is very difficult to accept that she may sign on the said settlement deed without understanding the meaning of it. It has been averred by the husband that wife is conducting coaching classes, but thereafter, it has been modified that she is working as a teacher or instructor in coaching classes imparting coaching to students at Pune. It has been alleged that "stridhan" has been given to the wife at the time of said settlement deed which has been denied by the wife at the time of hearing of this petition. Both the parties wanted to have the adjournment of the hearing of this transfer petition for the purpose of filing counter affidavits of denials in respect of "stridhan" and in respect of coaching classes averment. This Court refused the prayer for adjournment keeping in view the welfare of the child and in view of the provisions of section 21 of Hindu Marriage Act, 1955 (hereinafter referred to as, Hindu Marriage Act for convenience). The parties would be entitled to deny such allegations and all other allegations which are permitted to be done by lawful means whenever it is so needed. The observations made in this order would not affect the merit of their respective cases in said matrimonial petition to be conducted in any Court.

4. The husband resides in Mumbai and wife resides at Pune. Marriage took place at Mumbai, spouses resided lastly together at Mumbai. Presently the wife is residing at Pune, child Abha is aged about 21/2 years. These are the admitted facts.

5. Smt. Karnik appearing for the wife submitted that the petition needs to be withdrawn from Family Court, Bandra and needs to be transferred to Family Court, Pune because that would be convenient to wife and child Abha. Shri Kantawala appearing for husband submitted that when she is a lady doing the service of instructor in coaching classes, Pune she can afford to come to Bandra for the hearing of the said matrimonial petition. He submitted that thus, there would be no hardship whatsoever to the wife. It has been denied by Smt. Karnik, appearing for the wife.

6. Section 19 of Hindu Marriage Act provides that:

"Every petition under this Act shall be presented to the District Court within the local limits of whose Ordinary Original Civil Jurisdiction--

(i) the marriage was solemnised, or

(ii) the respondent, at the time of presentation of the petition resides, or

(iii) the parties to the marriage last resided together."

Smt. Karnik has pointed out the provisions of section 19(ii) for justifying her prayer for transfer of the matrimonial petition from Family Court, Bandra to Family Court, Pune and Shri Kantawala pointed out the provisions of section 19(i) and (ii) for justifying the trial in Family Court at Bandra.

7. Section 21-B of Hindu Marriage Act provides;

"Sub-section (1) the trial of the petition under this Act, shall, do as far as is practicable consistently with the interest of justice in respect of the trial, be continued from day to day until its conclusion unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

Sub-section (2) provides that every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent."

The rival contentions made by the husband and wife would be now decided keeping in view the observations made by Lord Reid in his speech in Gollins v. Gollins, 1963(2) All England Reporter 966:

"In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better."

The matrimonial petition is based on the ground of cruelty. Therefore, it would not be out of way of quote further portion of speech of Lord Reid in Gollins v. Gollins (supra).

"In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."

It is a matter of experience that when spouses are loving each other; they love each other like anything and when their terms are strained they peck each other till each bleeds. Therefore, the allegations and counter allegations made by spouses against each other will have to be discarded for the time being because their behaviour is full of grievances against each other at present and they are bent upon making allegations against each other in the way suitable to them. They are left to fight out their case on merit of the stand to be taken by them but this Court is very much concerned with the welfare of small female child named Abha who happens to be aged 21/2 years at present.

8. Dealing with the matrimonial cases touching the interest of the minor child which is the outcome of the wedlock between such spouses, the paramount consideration would be the welfare of such unfortunate child of such fighting spouses, in present case she happens to be 21/2 years old at present. As submitted by Smt. Karnik, her mother is intending to get her admitted in "play group" which she can afford keeping in view the fact that she is a woman engaged in service and sufficient enough to earn for herself and for educating her child, prima facie at present. A child who is expecting to be admitted in a "play group" is not at all required to be taken to Court premises for acquainting herself to the atmosphere of litigation at so early age and in beginning years of her life. It is well-settled principle in deciding such matters that as far as possible such minor child should be kept out of Court premises and nauseating atmosphere of allegations. If the matrimonial petition is permitted to be continued at Bandra in Family Court No. 6, the wife will have to carry said minor child Abha with her to Mumbai from Pune and till their number comes the said child will have to be in the outskirts of arena of battle field of litigation, may be with the mother, may be with the father of the mother, or may be in the custody of some of her relations from mother side. This Court does not want that. If the said matrimonial petition is withdrawn from the Family Court No. 6 Bandra and transferred to Family Court, Pune, the wife can take care of keeping said minor child with some of her relatives in the house away from the Court's atmosphere and the atmosphere of litigation. In fact she is directed to do so. In comparison to this the husband can afford to go from Mumbai to Pune because the means of communications are smoother and quicker. Now a person can travel from Mumbai to Pune by convenient train or motorable roads within hardly 31/2 hours and can return back on the same day. He can camp at Pune also for attending the hearing of the matrimonial case at Pune.

9. Therefore, leaving aside the allegations and counter allegations made by spouses which are left to them to prove in the arena of battles of litigation, this Court by giving the paramount importance to the welfare of the said female child Abha withdraws the above mentioned matrimonial petition from Family Court No. 6, Bandra and transfers it to Family Court, Pune, for hearing and disposal according to law. Keeping in view the provisions of section 23 of Hindu Marriage Act this Court directs that Family Court to take up the hearing of said matrimonial petition de die in diem (day to day), unless the Court is required to adjourn the hearing on the ground which is beyond its control or beyond the control of party praying for adjournment. Wife Smruti is hereby directed not to take said Abha to Court premises of Family Court, Pune whenever she is attending that Court. She is also directed to produce the record which shows that Abha has been admitted to good school at Pune, otherwise she would face the legal consequences of disobeyance of the orders of the Court and playing fraud on the Court. The Family Court No. 6, Bandra is hereby directed to despatch the record and proceedings of that case to Principle Judge of Family Court, Pune, who is entitled to hear that case by himself or herself or to make it over to other Family Court at Pune and Family Court, Pune would be bound to conduct the case de die diem. Family Court No. 6, Bandra should give suitable date to the parties to appear before the Family Court, Pune. The Family Court, Pune is hereby directed to decide that matrimonial petition within six months as indicated by section 21-B of Hindu Marriage Act. Keeping in view that it happens to be a matrimonial matter no order as to costs.