Bombay High Court
Rahul vs Smt.Ruchira on 7 June, 2022
Bench: V. V. Kankanwadi
{1} CRI.APPLN.359 OF 2021 & ORS.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.359 OF 2021
Rahul s/o Gautam Athwale
Age: 35 yrs., Occu.: Service,
R/o. Permanent Address - Yogeshwari Vrundawan,
Row House A/4, Malhar Chowk, Garkheda Parisar,
Aurangabad.
Previous Address -
House No.4/3173 Shivpratap Nagar,
Near Mhasoba Mandir, Station Road,
Vaijapur, Dist.Aurangabad. ..Applicant
(Orig. Respondent)
VERSUS
Smt.Ruchira w/o Rahul Athwale
Age: 30 yrs., Occu.: Now Temporary Job,
R/o - C/o Mukesh Gajbhiye
104, Meghdanush Appartment,
Angulimal Nagar, Nagpur 440 026. ..Respondent
(Ori. Petitioner)
...
WITH
CIVIL APPLICATION NO.6520 of 2021
IN MCA/256/2019
Rahul s/o Gautam Athwale
Age - 34 yrs., Occu.: Service,
R/o. At present House No.26/1055,
Dwarka, Gajanan Nagar, Bypass Road,
Majalgaon, Dist.Beed. ..Applicant
(Orig. Respondent)
VERSUS
Smt.Ruchira w/o Rahul Athwale ..Respondent
Age - 29 yrs., Occu.: Nil, (Ori. Petitioner)
R/o - C/o Mukesh Gajbhiye,
104, Meghdanush Apartment,
Angulimal Nagar, Nagpur - 440 026.
...
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{2} CRI.APPLN.359 OF 2021 & ORS.
WITH
MISCELLANEOUS CIVIL APPLICATION NO.256 OF 2019
Rahul s/o Gautam Athwale
Age - 33 yrs., Occu.: Service,
R/o House No.4/3173, Shivpratap Nagar,
Near Mhasoba Mandir, Station Road,
Vaijapur, Dist.Aurangabad. ..Applicant
(Orig. Respondent)
VERSUS
Smt.Ruchira w/o Rahul Athwale
Age: 28 yrs., Occu. Nil,
R/o - C/o Mukesh Gajbhiye,
104, Meghdanush Apartment,
Angulimal Nagar, Nagpur 440 026. ..Respondent
(Ori. Petitioner)
...
WITH
MISCELLANEOUS CIVIL APPLICATION NO.159 OF 2021
Smt.Ruchira w/o Rahul Athwale
Aged about 28 years, Occu.; Nil,
R/o. C/o.Mukesh Gajbhiye,
104, Meghdanush Apartment,
Angulimal Nagar, Nagpur - 440026. ..Applicant
(Ori. Respondent)
VERSUS
Rahul s/o Gautam Athwale
Aged: 33 years, Occu.: Service,
R/o. C/o. House No.4/3173, Shivpratap Nagar,
Near Mhasoba Mandir, Station Road,
Vaijapur, Dist.Aurangabad. ..Respondent
(Orig. Applicant)
...
Advocate for Applicant - Husband : Mr.Ajit M. Gholap
Advocate for Respondent - Wife : Mr.Ruturaj C. Patil
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE OF RESERVING JUDGMENT : 8th April, 2022
DATE OF PRONOUNCING JUDGMENT : 7th June, 2022
{3} CRI.APPLN.359 OF 2021 & ORS.
JUDGMENT :-
1. Rule. Rule is made returnable forthwith. By consent of the
parties, heard finally.
2. All these cases are between husband and wife and they
have three diferent matrimonial proceedings at diferent Courts
which they want to get transferred. The applicant husband -
Rahul Gautam Athwale is permanently residing at Aurangabad,
however, during the course of submissions, it has been
stated that now he has been posted at Majalgaon, Dist.Beed. He
has filed Criminal Application No.359 of 2021 for transfer of E-
Petition No.258 of 2020 filed by respondent wife - Smt.Ruchira
Rahul Athwale under Section 125 of the Code of Criminal
Procedure before the Family Court, Nagpur to Family Court at
Aurangabad. He has also filed Misc. Civil Application No.256 of
2019 for transfer of Hindu Marriage Petition bearing No.A-1255 of
2019 pending on the file of Family Court, Nagpur to the Court of
Civil Judge Senior Division, Vaijapur, District Aurangabad.
Misc. Civil Application No.159 of 2021 has been filed by
respondent wife - Smt.Ruchira Rahul Athwale for transfer of
Hindu Marriage Petition No.18 of 2021 filed by the applicant
husband - Rahul before 2 nd Joint Civil Judge Senior
{4} CRI.APPLN.359 OF 2021 & ORS.
Division, Vaijapur to the Family Court at Nagpur. Civil Application
No.6520 of 2021 has been filed in Misc. Civil Application No.256
of 2019 for amendment for addition of paragraph No.8-A and for
substituting prayer clause [B].
3. It will not be out of place to mention here that this Court in
Misc. Civil Application No.159 of 2021 as well as in Misc. Civil
Application No.256 of 2019 on 7 th January 2022 had referred the
matters for mediation, but the report has been received that the
mediation has failed.
4. Heard Mr.A.M.Gholap, learned Advocate for applicant
husband and Mr.R.C.Patil, learned Advocate for respondent wife.
5. Mr.Gholap, learned Advocate for the applicant husband
relied on the decision in Neelam Bhatia Vs. Satbir Singh Bhatia
[(2004) 13 Supreme Court Cases 436] wherein it has been held
that "transfer petition can be disposed of by directing
respondent husband to bear travel expenses of petitioner wife
and one person accompanying her, or of her father in case he
travels alone to attend the proceedings". Further, it is
submitted that in Ms Deepa Vs. Mr.Kiran R.Varnekar [Order dated
2nd December, 2013 in C.P. No.84 of 2013], the Karnataka High
{5} CRI.APPLN.359 OF 2021 & ORS.
Court observed that "the respondent may fnd it difcult to avail
leave frequently. He has to work and earn. It is not in dispute
that he is already paying monthly maintenance as ordered by
the Court. If the travel expenses and other incidental charges of
the petitioner are met by the husband it will not be necessary to
transfer the matrimonial case fled for restitution of conjugal
rights by the husband".
6. The learned Advocate for the applicant husband submitted
that the present applicant, who is also a Deputy Branch Manager
in State Bank of India is having several responsibilities and he
cannot leave the branch. Therefore, he is ready to pay travel
expenses of the respondent wife as well as any person
accompanying her. Further, it is submitted that the respondent
wife has taken up private job on temporary basis at Nagpur and
she is drawing salary of Rs.15,000/- per month. Under such
circumstances, it is necessary to transfer the two cases which
she has filed at Nagpur to the Family Court at Aurangabad where
the applicant husband can attend conveniently.
7. Per contra, the learned Advocate appearing for the
respondent wife relied on the following citations :-
1. Annamma Abraham (Sherly) Vs. Abraham Jacob,
[(2000) 10 Supreme Court Cases 275].
{6} CRI.APPLN.359 OF 2021 & ORS.
2. Sumita Singh Vs. Kumar Sanjay and Another [(2001)
10 Supreme Court Cases 41].
3. Soma Choudhury Vs. Gourab Choudhaury, [(2004) 13
Supreme Court Cases 462].
4. Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi,
[(2005) 12 Supreme Court Cases 237].
5. Sangmitra w/o. Ramkant Royalwar Vs. Ramakant s/o.
Gangaram Royalwar, [2009 (1) Mh.L.J. 303].
6. Anita Balkrishna Barge Vs. Balkrishna Sopan Barge
[2011 (1) Mh.L.J. 518].
7. Sandhya Rajaram Lokhande Vs. Rajaram Ganu
Lokhande, [(2012) 5 Bom CR 34].
8. Nilima Mahesh Muley Vs. Mahesh Madhavrao Muley,
[2012 (6) Mh.L.J. 453].
9. Snehal Omprakash Kothekar Vs. Omprakash Domaji
Kothekar, [2013 (6) Mh.L.J. 711].
10. Poonam Manish Lath Vs. Manish Kashiprasad Lath,
[2017 (3) Mh.L.J. 422].
8. In all the above cases, it can be seen that the convenience
of the wife was considered and the petitions were transferred to
the place of convenience of the wife.
{7} CRI.APPLN.359 OF 2021 & ORS.
9. At the outset, it is to be noted that marriage petition which
the applicant husband has filed before the Civil Judge Senior
Division, Vaijapur, Dist.Aurangabad, was on the ground that he
was posted at Vaijapur, but then now he is transferred to
Majalgaon in District Beed, still he wants the case to be
transferred to Family Court Aurangabad as he has given his
permanent address of Aurangabad. Any way he will have to
obtain leave on the date fixed before the Family Court,
Aurangabad, if at all the cases are transferred there, as his
present posting is at Majalgaon, Dist.Beed. No doubt
Aurangabad is near to Majalgaon, Dist.Beed, but the respondent
wife will have to come all the way from Nagpur to Aurangabad
each time. The respondent wife has filed two proceedings before
the Family Court at Nagpur. She has prayed for judicial
separation under Section 10 of the Hindu Marriage Act and for
maintenance whereas the proceeding filed by the applicant
husband before the Civil Judge Senior Division, Vaijapur is for
divorce.
10. In the catena of Judgments, Hon'ble Supreme Court has
considered the convenience of the wife in case of transfer of
petitions on the civil side. Here not only relief under the Civil Act
has been claimed by the applicant husband as well as the
{8} CRI.APPLN.359 OF 2021 & ORS.
respondent wife but the respondent wife is also claiming relief
under Code of Criminal Procedure, though it is quasi civil in
nature. In Rajani Kishor Pardeshi (supra) similar ofer was made
by the husband that he will pay the travel expenses of the wife
and there is no need to then transfer the cases but the Hon'ble
Supreme Court has observed that "In this type of matter, the
convenience of the wife is to be preferred over the convenience
of the husband". In other cases decided by this Court as well as
the Hon'ble Supreme Court relied by the learned Advocate for
the respondent wife, similar view has been taken that the
convenience of the wife will have to be considered. Under such
circumstance, one factor definitely will have to be highlighted
that all the three matters will required to be brought before one
Court in order to avoid any contrary decision and also to avoid
multiplication of proceedings. Therefore, when convenience of
wife is required to be considered, Misc. Civil Application No.159
of 2021 deserves to be allowed and Criminal Application No.359
of 2021 as well as Misc. Civil Application No.256 of 2019
deserves to be rejected. The petition filed by the applicant
husband before the Civil Judge Senior Division, Vaijapur deserves
to be transferred to the Family Court at Nagpur for its disposal
alongwith Hindu Marriage Petition No.A-1255 of 2019 and E-
Petition No.258 of 2020. Hence, the following order is passed :
{9} CRI.APPLN.359 OF 2021 & ORS.
ORDER
(i) Criminal Application No.359 of 2021 and Misc. Civil
Application No.256 of 2019 stand rejected.
(ii) Misc. Civil Application No.159 of 2021 stands allowed.
(iii) Hindu Marriage Petition No.18 of 2021 pending before
the learned 2nd Joint Civil Judge, Senior Division, Vaijapur,
Dist.Aurangabad stands transferred to Family Court, Nagpur
to be tried alongwith Hindu Marriage Petition No.A-1255 of
2019 and E-Petition No.258 of 2020.
(iv) Rule is discharged in respect of Criminal Application
No.359 of 2021 and Misc. Civil Application No.256 of 2019.
(v) Rule is made absolute in respect of Misc. Civil
Application No.159 of 2021.
(vi) Civil Application No.6520 of 2021 is disposed of.
(vii) No order as to costs.
( SMT. VIBHA KANKANWADI )
JUDGE
SPT
