Bombay High Court

Gauri Sunil Patil vs Sunil Manaji Patil on 12 December, 2023

Author: Abhay Ahuja

Bench: Abhay Ahuja

2023:BHC-AS:37319


                                                                                  13. MCA 383-23.doc


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION

                                      MISC. CIVIL APPLICATION NO. 383 OF 2023

                    Gauri Sunil Patil                                               ...Applicant
                          V/s.
                    Sunil Manaji Patil                                              ...Respondent

                    Mr. Tejas Hartalkar for Applicant.
                    None for Respondent.

                                                CORAM       : ABHAY AHUJA, J.

                                                DATE        : 12th DECEMBER, 2023
                    P.C. :

1. This is an application filed by the Applicant-wife seeking transfer

of divorce proceedings filed by the Respondent-husband before the

Court of Civil Judge, Senior Division at Kalyan, District, Thane to the

Court of Civil Judge, Senior Division at Islampur, District Sangli.

2. Mr. Hartalkar, learned Counsel for the Applicant points out to the

earlier orders of this Court and submits that although service to the

Respondent is complete, none appears for the Respondent even today

nor any reply has been filed. Learned Counsel draws the attention of

this Court to the order dated 1st December, 2023, to submit that this

Court has clearly recorded in the said order that if none appears for the

Respondent on the next date, this Court will proceed to hear the

13. MCA 383-23.doc

matter. Learned Counsel, therefore, urges this Court to hear the matter

today.

3. It is observed that none appears for the Respondent, despite

being served and despite opportunity being granted. Accordingly, this

Court proceeds to hear the matter.

4. Mr. Hartalkar, learned Counsel for the Applicant would submit

that the marriage between the Applicant and the Respondent was

solemnized on 17th June, 2019 in District Sangli. That there are no

issue to the parties out of the wedlock. Learned Counsel would submit

that earlier the Respondent - husband had issued a notice to the

Applicant seeking divorce by mutual consent, which was replied to by

the Applicant, who wanted to co-habit with the Respondent. However,

despite, the same the Respondent had gone ahead and filed the divorce

proceedings against the Applicant on 1st March, 2023, in the Court of

Civil Judge, Senior Division, Kalyan. It is submitted that the Applicant

was served with the notice on 24 th April, 2023 and she has filed written

statement. That pursuant to the stay granted by this Court in this

Application, the proceedings before the Court in Kalyant have been

stayed.

13. MCA 383-23.doc

5. Mr. Hartalkar, would submit that the Respondent is a practicing

Advocate and he has gone ahead and filed multiple proceedings against

the Applicant only to harass her. Learned Counsel submits that the

Applicant has filed Criminal Misc. Application under the Domestic

Violence Act against the Respondent and his family members before the

JMFC, Shirala, District. Sangli. Learned Counsel submits that the

Applicant is from a village and residing at village Arala and is

unemployed, living with her parents. Learned Counsel would submit

that her father is a agriculturist and has practically no source of income

to support the travel of the Applicant to Kalyan. Learned Counsel

would submit that the distance between Arala village and Kalyan is

about 350 km one way and it takes more than 10-12 hours one way. As

she is not accustomed to travel to Mumbai alone, she has to be

accompanied with atleast one elderly person to Mumbai and for that

purpose the Applicant is required to spend at least Rs.3000/- per day

to attend the Court at Kalyan, which is not possible to spend in view of

her being unemployed and her father being a simple agriculturist.

Learned Counsel submits that the Applicant is undergone to some

medical treatment, due to which she cannot take long journey from her

native village and also seeks to draw this Court's attention to the

medical papers at Exhibit C of the Application, to substantiate the

13. MCA 383-23.doc

treatment she has been taking but she has now discontinued the same

although she still can't undertake long journeys.

6. Learned Counsel would submit that therefore it is not only

inconvenient for the Applicant to travel to Kalyan but also would cause

undue hardship, if the divorce proceeding is not transferred from

Kalyan to Islapmpur. Learned Counsel submits that on the other hand

the Respondent is a practicing Advocate at Kalyan and he would not

suffer any hardship if the divorce proceedings are transferred to

Islampur.

7. Mr. Hartalkar, learned Counsel for the Applicant draws the

attention of this Court to the judgment dated 15 th September, 2023 in

the case of Mrs. Priyanka Rahul Patil Vs. Rahul Ravindra Patil1 in

support of his contention with respect to the hardship that would be

caused to the Applicant- wife, if she is called upon to attend to the

Court at Kalyan.

8. I have heard Mr. Hartalkar, learned Counsel for the Applicant and

also considered his submissions.

1 MCA 310 of 2022

13. MCA 383-23.doc

9. The Hon'ble Supreme Court in the case of N.C.V. Aishwarya Vs.

A.S. Saravana Karthik Sha2 has clearly held that in matters where

matrimonial proceedings come up for consideration under Section 24

of the Code of Civil Procedure, 1908, (CPC) ends of justice demand

that generally it the convenience of the wife which must be looked at.

Paragraph No. 9 of the said decision is usefully quoted as under :-

"9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioral pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to like. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer."

(Emphasis Supplied)

11. Also, in the case of Rajani Kishor Pardeshi V/s. Kishor Babulal

Pardeshi3, the Hon'ble Apex Court has observed that the convenience

of the wife has tobe preferred over the convenience of the husband.

Paragraphs 3 and 4 of the said decision are usefully quoted as under :

2 SCC Online SC 1199 (2022) 3 2005 (12) SCC 237

13. MCA 383-23.doc

"3. The husband opposes the transfer on the ground that it is equally inconvenient for him to go to Satana and that he is willing to pay the expenses for her travel to Mumbai.

4. In this type of matter, the convenience of the wife is to be preferred over the convenience of the husband. Hindu Marriage Petition No.6 of 2004, Kishor Babulal Pardeshi v.

Rajani Kishor Pardeshi pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra is transferred to the Family Court of proper jurisdiction at Satana, Madhya Pradesh."

(Emphasis supplied)

10. This Court has also, as pointed out by the learned Counsel for the

Applicant in number of matters including Mrs. Priyanka Rahul Patil Vs.

Rahul Ravindra Patil (supra), observed that while considering

applications under Section 24 of the CPC with respect to matrimonial

proceedings not only the convenience of the wife has to be considered

but the convenience of the wife has to be preferred over the

convenience of the husband.

11. The Respondent despite service has chosen not to be represented

nor any reply has been filed on his behalf. As such the allegations and

submissions made in the application remain unchallenged.

12. Therefore, applying the settled principles of law to the facts of

this case, I am of the considered opinion that ends of justice would be

13. MCA 383-23.doc

met if the application is allowed as prayed for. The application is

accordingly made absolute in terms of prayer clause (a), which reads

thus:-

"(a) That this Hon'ble High Court be pleased to transfer the Marriage Petition No. 397 of 2023, filed in the Court of Jt.

Civil Judge (S.D.), Kalyan, Dist. Thane, for Divorce, under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955, pending in the Court of Jt. Civil Judge (S.D.), at Islampur, Dist. Sangli, to try, entertain and decide the same"

13. Application accordingly stands disposed.

14. It is made clear that any observation(s) on the merits of the

dispute between the parties is only to consider this application which

shall not influence the trial or disposal of the Marriage Petition which is

to be tried and decided on its one merits uninfluenced by the said

observation(s).