Bombay High Court
Bhavinee Hitesh Prajapati vs Hitesh Rameshbhai Prajapati on 10 February, 2023
Bench: Amit Borkar
907-mca-399-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS CIVIL APPLICATION NO.399 OF 2022
Bhavinee Hitesh Prajapati ... Applicant
V/s.
Hitesh Rameshbhai Prajapati ... Respondent
Mr. Ganesh Kanchanpurkar for the applicant.
Mr. Kuba Wagh a/w Shrusthi Jadhav for the
respondent.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 10, 2023
P.C.:
1. The wife has filed present Miscellaneous Civil Application
seeking transfer of Marriage Petition No.A-644 of 2022 pending on
the file before learned Family Court Bandra to Civil Judge Senior
Division, Palghar.
2. The marriage between the applicant and respondent is took
place on 25th June, 2019. Out of the said wedlock applicant and
respondent have a baby boy. Due to the matrimonial difference,
the applicant filed proceedings under the provision of Protection of
Women from Domestic Violence Act, 2005 bearing Criminal
Application No.11 of 2022 before the learned Judicial Magistrate
First Class, Dahanu. The applicant has also brought First
Information Report bearing No.113 of 2022 under Section 498-A,
406, 504, 506 read with 34 of the Indian Penal Code, 1860 at
907-mca-399-2022.doc
Dahanu. The husband has filed petition for divorce under Section
13 (1)(ia) of Hindu Marriage Act, 1955 before the learned Family
Court at Bandra, Mumbai.
3. The applicant has therefore filed present application seeking
transfer of proceeding from learned Family Court at Bandra, to
learned Civil Judge Senior Division, Palghar.
4. The opponent has filed reply contesting the application
denying all contentions raised in the application. Additionally, the
opponent has stated facts relevant for the purposes of adjudication
of the disputes on merits. Learned advocate for the opponent
submitted that there is threat to his life as he was assaulted at
Dahanu. According to the learned advocate for the opponent, the
applicant has made a false statement on oath.
5. Having considered the submissions made on behalf of both
sides, in my opinion, the applicant has made out a case for transfer
based on following reasons. a) The distance between Dahanu to
Bandra is around 140 kilometers. b) The applicant needs to take
care of small child of Two and half years. The transfer would not
inconvenient to the husband as the proceeding under the Domestic
Violence Act filed by the wife is already pending before the Court
at Dahanu.
6. Insofar, as the objection that there is imminent threat to the
life of the opponent is concerned, there is no credible material
placed on record to justify such apprehension. The false statement
on oath as alleged does not have relevance to the merits of the
application. According to the opponent, the father of applicant is a
907-mca-399-2022.doc
owner of fleet of cars. The fact that father of wife is not a
Rickshaw Driver has no relevance for adjudication of the
application.
7. Considering the facts stated in paragraph 10 of application
on oath, in my opinion, the pendency of proceedings before
learned Family Court at Bandra and attending the said proceeding
by the applicant would cause inconvenience to the wife.
8. In view of the recent judgment of the Apex Court in the case
of N.C.V. Aishwarya v. A.S. Sarvana Karthik Sha reported in 2022
SCC OnLine SC 1199. wherein the apex Court in paragraph No.9
held 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
have to take into consideration the economic soundness of
both the parties, the social strata of the spouses and their
behavioural 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 life. Given the prevailing socio-economic paradigm in the
Indian society, generally, it is the convenience which must be
looked at while considering transfer.
9. For the reasons stated, Miscellaneous Civil Application is
allowed in terms of prayer clause (b). No costs.
(AMIT BORKAR, J.)
