Bombay High Court

Darshana Prashant Khairnar vs Prashant Subhash Khairnar on 19 April, 2017

Bench: S.P. Deshmukh

                                                             199.2016MCA.odt
                                          1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


          MISCELLANEOUS CIVIL APPLICATION NO. 199 OF 2016




          Darshana w/o Prashant Khairnar
          Age: 30 years, Occu: Household.
          R/o c/o Sudhir Pundlik Chavan,
          Plot no. 46, Old Bhagwn Nagar,
          Behind Girna Water Tank,
          Jalgaon District: Jalgaon                  ...Applicant
                                                     (Ori. respondent)

                      Versus

          Prashant Subhash Khairnar
          Age: 36 years, Occu: Service
          R/o Flat no. 13, 2nd Floor,
          Sai Park, Vadgaon Alandi Road,
          Alandi, Pune, Dist. Pune                 ...Respondent
                                                   (Ori. Petitioner)

                                         ...

Mr. Azizoddin R. Syed, Advocate for applicant Mr. Hemant Surve, Advocate for respondent

...

[CORAM: SUNIL P. DESHMUKH, J.] Date: 19th April, 2017

ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

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2. Applicant-wife is before this court seeking transfer of

proceedings bearing Miscellaneous Application no. 676 of

2016, lodged by respondent-husband before the District

Judge, Pune, seeking custody of child viz; Master Chinmay,

to District Judge at Jalgaon.

3. Learned counsel on behalf of applicant contends that

there are quite a few proceedings pending at Jalgaon filed

by the applicant and a few proceedings have also been

initiated at the behest of respondent at Jalgaon. Learned

counsel for the applicant purports to refer to list of matters

at Jalgaon.

4. Learned counsel goes on to contend that father of the

applicant is an old person and is in service and the

applicant is residing with her father. Applicant and member

of her paternal family are arraigned in proceedings at Pune.

The distance between the two places is quite long and

which is about 380 kilometer and it is difficult for them to

attend to the proceedings at Pune. He further submits that

Master Chinmay is taking education in a school at Jalgaon

and applicant has to look after her son. Applicant has no

source of income. She is dependent on her father for their

maintenance. In the circumstances, Pune is not convenient

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place for her and paternal family to attend to the

proceedings at Pune. Learned counsel for the applicant

submits that the husband has already been attending to the

proceedings at Jalgaon. Having regard to the difficulties

those would be faced by the applicant-wife, it would be

expedient that the proceedings at Pune referred to

hereinabove, are transferred to Jalgaon.

5. He further purports to draw attention to that, no

maintenance is paid to the applicant and the dispute is yet

pending.

6. Learned counsel for respondent, Mr. Surve,

vehemently countering aforesaid submissions, contends

that there may be quite a few proceedings between the

parties which are pending at Jalgaon, yet, it is not always

necessary that respondent-husband has to attend to the

same personally. He submits that there are quite a few

proceedings pending at Pune and which have been

attended to through counsel by the applicant-wife.

7. Learned counsel for respondent submits that it is

absolutely improper contention on behalf of applicant that

she is not residing at Pune. Most of the documents show

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that the applicant is staying at Pune. He further submits

that economic condition of the husband is not sound, and

as such, it would be expedient to direct the applicant to

attend to the proceedings at Pune. The tenor of

submissions on behalf of respondent is that, it is not the

respondent who is responsible for deterioration in the

relationship between the parties. He further submits,

background of facts and circumstances would evince that

the transfer is sought to harass the respondent-husband.

8. This submission on behalf of respondent is being

resisted by applicant referring to that proceedings may

have been initiated at Pune, however, all the proceedings

have been stayed under orders of High Court.

9. Learned counsel for the respondent tenders across

during the course of hearing a decision of supreme court in

the case of Krishna Veni Nagam v/s Harish Nagam reported

in 2017 Law suit(SC) 195 and draws attention to and

purports to lay stress on paragraph no. 5 of the same

reading, thus;

[5] On 9th January, 2017 when the matter came-up for

hearing, the following order was passed:

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"This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The petitioner has to look after her minor daughter who is living with her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides.

This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants have to travel to this court and spend on litigation.

Question is whether this can be avoided?

We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial

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matters which are required to be dealt with expeditiously are delayed.

In this circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court May also pass orders from time time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.

However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court."

10. He further refers to section 25 of Guardian and Wards

Act, 1890, and contends that the ordinary place of

jurisdiction of the court would be at a place where a child

ordinarily resides. He purports to contend that the

documents indicate that the place of ordinary residence of

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applicant and child is at Pune and in the circumstances, the

proceedings of which transfer has been sought under the

present application would legitimately have to be

prosecuted at Pune.

11. Learned counsel for the respondent submits that

although it is being submitted on behalf of applicant that

the dispute about maintenance is pending before the court,

yet, while proceedings for maintenance are before the

court, those are not seriously prosecuted on behalf of

applicant.

12. Learned counsel for respondent, therefore, urges this

court not to intercept the proceedings at Pune.

13. Learned counsel for the applicant opposes the

submission on behalf of respondent about her and child

being resident of Pune and purports to submit that the

brother of the applicant is no longer residing at Pune, and

he is presently residing at Bangalore. According to him,

the location of the court at Pune is at quite a long distance

from his erstwhile residence.

14. While the submissions have been advanced as

aforesaid on either side, one thing which perhaps appears

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to be not in dispute is that master Chinmay is taking

education at Jalgaon. Proceedings in respect of Chinmay's

custody are sought to be transferred to Jalgaon and it

appears that the applicant is presently residing at Jalgaon,

albeit, it is being contended on behalf of respondent that

applicant has facility of residence at Pune.

15. Further, although paragraph no. 5 of supreme court

decision is being relied on by respondent, yet, the supreme

court in the very same paragraph has observed, the

quotation which is reproduced thus;

" This Court is flooded with petitions of this

nature and having regard to the

convenience of the wife transfer is

normally allowed. However, in the process

the litigants have to travel to this Court and

spend on litigation. "

16. Having regard to aforesaid and looking at that, quite

a few proceedings at Jalgaon are required to be prosecuted

by respondent, it appears to be expedient that this

proceeding may also be taken up at Jalgaon, with a rider

that this proceeding at Jalgaon and dates in the matter be

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so arranged at Jalgaon as would be convenient to the

respondent to attend to the court proceedings at Jalgaon.

Taking overall view in the matter, situation appears to call

for granting Miscellaneous Civil Application with a rider

aforesaid.

17. In the circumstances, Miscellaneous Civil Application