Sow. Rutuja @ Mitrali vs Mahesh
2012 Latest Caselaw 76 Bom

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             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

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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

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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

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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

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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

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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

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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

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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