Ronit Suresh Gundesha vs Gayatri Sanjay Shah
2021 Latest Caselaw 3382 Bom

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BDP-SPS


 Bharat
 D.
 Pandit                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Digitally signed
 by Bharat D.
 Pandit
 Date:
 2021.02.23
                                        CIVIL APPELLATE JURISDICTION
                                MISC. CIVIL APPLICATION (ST) NO. 98349 OF 2020
 18:22:13 +0530




                    Mr. Ronit Suresh Gundesha                   ..... Applicant.
                            V/s
                    Mrs. Gayatri Sanjay Shah                    ...... Respondent.
                    ----
                    Mr. Abhijit D. Sarwate a/w Ms. Ajinkya Udane for the Applicant.
                    Mr. Amol B. Jagtap for the Respondent.
                    -----
                                      CORAM: NITIN W. SAMBRE, J.

                                         DATE:     FEBRUARY 23, 2021
                    P.C.:-

                    1]       This application is for transfer of Cri. M.A. No.5122 of 2019

initiated under the provisions of the Protection of Women from

Domestic Violence Act, 2005 (hereinafter referred to as "D.V. Act" for

the sake of brevity) which is pending on the file of learned Judicial

Magistrate, First Class, Pune to the Family Court No.1, Pune where

proceeding being P.E. No.2/2020 is pending adjudication. Prayer for

recording of common evidence is also made.

2] Few facts necessary for deciding the application are as under:-

3] Parties to the application got married on 12/12/2017 at

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Mahabaleshwar in Satara District. Out of matrimonial discord, non-

applicant initiated proceedings for grant of maintenance under Section

125 of the Code of Criminal Procedure which is pending before the

Family Court, Pune. The said proceedings were initiated sometime in

2019. There is one more proceeding initiated by wife being M.A.

No.5122 of 2019 under the provisions of Sections 12, 18, 19, 20, 22

and 23 of D.V. Act against the present Applicant and his family

members. As such, in both these applications, present

Applicant/husband is non-applicant and is seeking transfer of the same

for being tried together.

4] Submissions of learned Counsel for the Applicant Mr. Sarwate

are, both these applications need to be heard by one court i.e. Family

Court No.1, Pune which is seized of the proceeding being P.E.

No.2/2020 i.e. one under the provisions of Section 125 of the Code of

Criminal Procedure Code for grant of maintenance. Mr. Sarwate

would urge that in case if application is allowed, hardship which will

be caused to both parties to attend two different proceedings can be

avoided. He would submit that contradictory judgments on the same

set of facts may be delivered which needs appreciation in the matter of

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consideration of prayer of the Applicant. The learned Counsel then

would invite attention of this Court to the judgments of this Court in

the matters of (1) Sandip Mrinmoy Chakraboarty vs. Reshita Sandip

Chakrabarty & Anr delivered on 6/9/2018 in Criminal Writ Petition

No. 4649 of 2015, (2) Hitesh Prakashmalji Mehta vs. Aashika Hitesh

Mehta delivered on 28/9/2020 in Misc. Civil Application (St) No.788

of 2020 and (3) Santosh Machindra Mulik vs. Mohini Mithu

Choudhari vs delivered on 15/11/2019 in Misc. Civil Application

No.64 of 2019 so as to substantiate his aforesaid contentions.

5] Per contra, Mr. Jagtap, learned Counsel for the Respondent, has

opposed the transfer as, according to him, both the proceedings are

independent in nature. The proceeding for grant of maintenance

under Section 125 of the Code of Criminal Procedure is filed with

altogether different object than that of the proceeding filed under D.V.

Act. He would then urge that every court while dealing with the

proceeding which is pending before it, is required to be sensitive to the

nature of jurisdiction exercised by the court and that being so the

court is required to be within its limitation. As such, according to him,

transfer of proceeding as prayed for should not be granted.

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6] Mr. Jagtap would then urge that the scope of provisions of D.V.

Act is much wider than that of the provisions under Section 125 of the

Code of Criminal Procedure. The order under Section 20 of D.V. Act

for grant of maintenance is not restricted or regulated by the

provisions of Section 125 of the Code of Criminal Procedure and in

that view of the matter, both the proceedings are required to be

termed as independent proceedings and cannot be heard and dealt

with together. He would rely upon the following judgments/Orders in

support of his contentions:

(i) Judgment of Delhi High Court dated 11/4/2019 passed in CRL REV. PET. 994 of 2018 in the matter of Shome Nikhil Danani vs. Tanya Banon Danani.

(ii) Order of the Apex Court in Transfer Petition No.280 of 2020 passed on 11/09/2020 in the matter of Motilal (Died) as per LRs vs. The District Collector and Ors.

(iii) Order of the Apex Court in Criminal Appeal No.1613 of 2019 passed on 23/10/2019 in the matter of P. Rajkumar & Anr. vs. Yoga @ Yogalakshmi.

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7]     Considered rival submissions.



8]     From the prayer and pleadings in the application, it appears that

both the parties out of their matrimonial discord are litigating in two

proceedings; one under section 125 of the Code of Criminal Procedure

pending on the file of Family Court No.1, Pune whereas other

proceeding under the provisions of D.V. Act is pending on the file of

Judicial Magistrate, First Class, Pune.

9] Fact remains that basis for initiation of both these proceedings is

matrimonial discord and factual matrix which is required to be

considered in dealing with the claim raised therein appears to be

similar.

10] This Court in the matter of Santosh Machindra Mulik cited supra

has already ruled that the Family Court has every jurisdiction to try

the proceedings for maintenance under Section 125 of Code of

Criminal Procedure having regard to provisions of Section 26 of D.V.

Act. Apart from above, this Court is also sensitive to the findings

recorded in the matter of Sandip Mrinmoy Chakraboarty cited supra

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wherein similar issue fell for consideration. Even if distinct relief i.e.

of maintenance under the Code of Criminal Procedure and other relief

under the provisions of D.V. Act are claimed in two family

proceedings, the lis between the parties is required to be decided

based on certain similar set of facts. As such, parties will be put to

hardship of leading evidence on the same set of facts before different

courts thereby wasting the precious judicial time of the Court. It

cannot be said that Family Court lacks jurisdiction to decide the

proceedings under D.V. Act. As observed hereinabove, Family Court

has every power to record common evidence in both these

proceedings, may be the reliefs sought to some extent are overlapping.

However, the Court must be sensitive to the fact that it should avoid

multiplicity of proceedings. Considering the object of Section 24 of

the Code of Civil Procedure which provides for transfer of the

proceedings from one court to another, the Court must avoid

multiplicity of litigation and passing of contradictory orders on the

same set of facts and evidence by two different courts trying two

different proceedings and in such circumstances powers of transfer can

be exercised so as to grant relief of transfer.

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11] As such, judgments on which reliance is placed by the learned

Counsel for the Applicants in the matter of Sandip Mrinmoy

Chakraboarty, Hitesh Prakashmalji Mehta, Santosh Machindra Mulik

cited supra have squarely covered the issue which is sought to be

canvassed in the present application. As far as reliance placed by the

learned counsel for non-applicant on the order of Apex Court in P.

Rajkumar cited supra is concerned, same will hardly of any assistance

particularly when in the said proceedings maintenance issue under the

provisions of D.V. Act was not negated and relief of maintenance was

claimed under Section 125 of the Code of Criminal Procedure. The

Apex Court as such has observed that relief under Section 20 of D.V.

Act and under Section 125 of the Code of Criminal Procedure are in

two different and independent proceedings. Similarly, the judgment

in the matter of Motilal cited supra also will be hardly of any

assistance to the non-applicant as in the facts of the said case the Apex

Court was dealing with the prayer for transfer of writ appeal filed in

Telangana High Court to the High Court of Delhi. In the case in hand,

what can be noticed is matrimonial proceeding from the court of

Judicial Magistrate, First Class, Pune is sought to be transferred to the

Court of Family Court No.1, Pune for being tried with maintenance

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proceedings initiated under Section 125 of the Code of Criminal

Procedure. That being so, judgments relied upon by the learned

Counsel for non-applicant in support of his prayer for rejection of the

prayer of transfer are hardly of any assistance to the non-applicant.

12] As such, for the reasons recorded hereinabove, application is to

be allowed in terms of prayer clause (a) and same is accordingly

allowed.

( NITIN W. SAMBRE, J. )