Aparna Nitin Kale vs Nitin Masaji Kale
2023 Latest Caselaw 9345 Bom

                                                    MCA 72 of 2023.doc


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CIVIL APPELLATE JURISDICTION
      MISCELLANEOUS CIVIL APPLICATION NO. 72 OF 2023


Aparna Nitin Kale                 ...    Applicant
      Vs.
Nitin Masaji Kale                 ...     Respondent


Mr. Shivraj Kunchage, Advocate for the Applicant.
Ms. Sheetal Mhatre, Advocate for the Respondent.


                    CORAM              : ABHAY AHUJA, J.
                    RESERVED ON        : 29 AUGUST, 2023.
                    PRONOUNCED ON : 06 SEPTEMBER, 2023.

JUDGMENT :

1. This application has been filed by the Applicant-wife under

Section 24 of the Code of Civil Procedure, 1908 (CPC) seeking

transfer of the proceedings bearing Divorce Petition No. A-826 of

2019 filed by the Respondent-husband for dissolution of marriage

pending before the Learned Family Court, Court No. 5, Pune to the

Court of Learned Civil Judge Senior Division at Khed, Taluka-

Khed, District Pune.

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2. Mr. Shivraj Kunchage, learned counsel for the Applicant,

would submit that the marriage between the Applicant and the

Respondent was solemnized on 20 th January 2017 at Govind

Garden, Someshwar Corner, Survey No. 17, Baner Road, Near

Rajwada Hotel, Pune as per Hindu rites and rituals. Out of the

said wedlock, the Applicant and Respondent had begotten one

daughter, who is now 5 years old.

3. The learned counsel for the Applicant submits that after few

days of marriage, matrimonial differences arose between the

husband and wife. That, the Respondent and his family accused

the Applicant for each and everything and used offensive language

against her, made financial demands from the applicant's family

and on being unable to pay the demanded amount, the

Respondent and his father beat/assaulted the Applicant and threw

the Applicant along with her daughter Trisha out of the

matrimonial home due to which she was forced to stay with her

parents at Village- Kalamb, Tal.- Ambegaon, Dist.- Pune.

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4. The learned counsel would submit that thereafter, the

Respondent-husband filed Divorce Petition bearing No. A-826 of

2019 before the Learned Family Court, Pune for dissolution of

marriage on the grounds of cruelty and has made various baseless

allegations on the Applicant. That, the Respondent, with a

malafide intention and ulterior motive to harass the Applicant and

her daughter, has filed one more application below Exhibit 37 in P.

A. No. 826 of 2019 for access to daughter Trisha. The learned

Court has allowed the said application vide order dated 23rd

January 2023 and passed the following order:-

"1.The application Exh.37 is partly allowed.

2. The petitioner-husband is permitted to meet the daughter Trisha on every 3 rd Saturday of every month from 11:OO am to 2:00 pm at Child Care Center, Family Court, Pune and for that pay the traveling expenses Rs.1000/- to the respondent-wife whenever will come to giving access."

5. The learned counsel for the Applicant would submit that the

Applicant is presently residing with her parents at Village Kalamb,

Taluka Ambegaon, District Pune and that she has no source of

income of her own. The learned counsel also submits that the

Applicant on every date of hearing before the learned Family

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Court at Pune has to travel from Kalamb to Pune along with her 5

year old daughter as there is no one at her parents' home to take

care of the minor daughter. The Applicant is also required to take

care of her ailing parents. Learned Counsel submits that the health

of Applicant is also not good as she is emotionally depressed due

to the baseless allegations made by the Respondent in Divorce

Petition against her. The learned counsel submits that the distance

from Kalamb to Pune is around 80 kms one way and she does not

have anyone to accompany her during such travel. The learned

counsel for the Applicant would submit that it is causing huge

inconvenience to the Applicant to travel to Pune from Village

Kalamb to attend the Court proceedings. The learned counsel

would submit that therefore, it is not only inconvenient for the

Applicant to travel to Pune but also it is causing undue hardship to

her every time the matter is listed at Family Court, Pune. The

learned counsel would submit that the Applicant has filed an

Application under Section 125 of Code of Criminal Procedure

(Cr.P.C.) bearing Criminal Miscellaneous Application No. 70 of

2020 for maintenance before the learned Magistrate Court at

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Ghodegaon, Taluka Ambegaon, District Pune. That, Respondent

has several sources of income from different businesses and he

would have no difficulty in travelling to Khed. Therefore, learned

counsel for the Applicant urges this Court that the proceedings

bearing Divorce Petition No. A-826 of 2019 pending before the

learned Family Court, Court No. 5, Pune be transferred to the

Court of learned Civil Judge Senior Division at Khed, Taluka Khed,

District Pune.

6. In the reply filed to the application, the Respondent has

denied all of this. Ms. Sheetal Mhatre, learned counsel for the

Respondent husband, would submit that despite the Family Court

Counselor having made multiple efforts to amicably settle the

matter, the efforts have not borne any fruits till now. The learned

counsel submits that the Applicant always ill-treated the

Respondent and his family members and left the matrimonial

home on her own without any intimation or reason. It is further

submitted that the Applicant, during her stay at the matrimonial

home, demanded many things like money, flat etc. and upon not

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satisfying such demands, the Applicant would threaten the

Respondent that she would kill the daughter and commit suicide.

The Respondent, in the reply, has also stated that the applicant

used to visit her father's house to perform black magic. Due to this

threat, Respondent was out of home from Pune for 5 days without

informing anyone. Therefore, the parents of the Respondent filed

a missing complaint. The learned counsel would further submit

that the Applicant was undergoing psychiatric treatment at J. J.

Hospital and the same is on record in the learned Family Court.

That Applicant has, after 8 months of the Divorce Petition being

filed at Family Court, Pune, filed FIR No. 76 of 2020 on 5 th March

2020 under Section 498-A, 323, 504, 506 & 34 of the Indian

Penal Code, 1860 (IPC) at Manchar Police Station against the

Respondent, his father, his mother and his sister. The learned

counsel would submit that the Applicant has misused the

provisions of Section 498-A of the IPC only to harass and threaten

the family of the Respondent.

7. The learned counsel for the Respondent would further

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submit that the order for maintenance under Section 125 of Cr.P.C.

dated 2nd December 2020 is passed by the learned Magistrate

Court, Ghodegaon wherein the learned Court has directed the

Respondent to pay the amount of Rs. 2,500/- as maintenance

towards the Applicant and Rs. 1,500/- towards the daughter. It is

further submitted that there has been no default at any time by

the Respondent in payment of the maintenance towards both the

Applicant as well as the daughter and the Respondent is also

taking care of the entire educational expenses of his daughter.

The learned counsel would submit that Applicant has completed

her Masters Degree post marriage with the financial assistance

from the Respondent and is a Qualified Teacher. The learned

counsel would further submit that the Applicant never followed

the order of visitation rights granted to the Respondent by order

dated 23rd January, 2023 passed by the learned Family Court

which directed the Applicant to give access of the daughter to the

Respondent. The learned Court, during the Covid-19 pandemic,

had allowed video - conferencing, however, the Applicant every

time avoided the call on some or other pretext and was never

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allowed to interact with his daughter. The Applicant also denied

the access to the Respondent on the daughter's birthday. The

learned counsel would further submit that the travel distance from

the present place of residence of the Applicant to the Family Court

at Pune is less than 2 hrs of commute. Therefore, no hardship will

be caused to the Applicant to travel. Learned counsel would also

submit that the Respondent is ready and willing to pay the entire

travelling expenses in advance and will also bear the

accommodation expenses, if required. The learned counsel would

submit that the Applicants only purpose behind filing this

application is to delay the proceedings and to harass the

Respondent. Therefore, the learned counsel submits that this

application be dismissed.

8. I have heard Mr. Shivraj Kunchage, learned counsel for

Applicant and Ms. Sheetal Mhatre, learned counsel for

Respondent at length and with their assistance also perused the

application and the reply and considered the rival contentions.

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9. This is a case where the marriage between the Applicant-

wife and the Respondent-husband was solemnized on 20 th

January, 2017 as per Hindu rites and rituals. There are allegations

that after few days of marriage, the Respondent and his family

accused the applicant and used offensive language against her,

that the Respondent made financial demands from the Applicants

family, assaulted the Applicant and finally the applicant was asked

to leave the matrimonial home due to which she and her daughter

have been compelled to stay with her parents at Village-Kalamb,

Tal.- Ambegaon, Dist.- Pune. That the Respondent has denied the

above and submitted that the Respondent has herself left the

matrimonial home and has also threatened to kill herself and the

child therefore the Respondent-husband filed a Divorce Petition

bearing A-826 of 2019 for dissolution of marriage on the grounds

of cruelty at Family Court, Pune.

10. It appears that the Applicant has no source of income of her

own as the Applicant is unemployed and dependent on her

parents for financial assistance. It also appears that the Applicant

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does not have anyone to accompany her from Kalamb when the

matter is listed at the Family Court, Pune which is at least 70 kms

from Kalamb. As noted above, it would also be inconvenient to

take her 5 year old school going daughter along with her during

every date of hearing when the matter is listed in Family Court

Pune. There would also be no one to look after her daughter if she

has to travel to Pune on every date. Besides the daughter needs to

be taken care of by mother if that is denied it would definitely

cause inconvenience and hardship to the Applicant. Therefore,

even if travelling and boarding/lodging expenses are paid for by

the husband, that would be immaterial considering the hardship

caused to the Applicant-wife. On the other hand, it appears that

the Respondent is financially sound and can afford travelling to

the court at Khed.

11. It is settled law that while considering the application for

transfer under Section 24 of CPC filed by a wife, the convenience

of the wife and hardship caused to the wife has to be of

paramount consideration and wife's hardship and inconvenience

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has to be preferred over that of the husband.

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

Vs. A.S. Saravana Karthik Sha, SCC Online SC 1199 (2022) has

highlighted this very aspect considering the Indian socio-economic

paradigm. 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)

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13. In the above circumstances the application deserves to be allowed and is made absolute in terms of prayer clause (A) which reads thus :-

"That, this Hon'ble Court as per Section 24 of the Civil Procedure Code r/w Rule 6 of Chapter I of the Bombay Appeallate Side Rules, 1960 a/w Article 227 of Constitution of India, be pleased to transfer the proceedings bearing Divorce Petition No. A-826/2019 pending before the Ld. Family Court, Court No. 5, Pune to the file of Ld. Civil Judge, Senior Division at Khed, Tal.- Khed, Dist.- Pune."

14. The application stands allowed in the above terms. Parties to bear their own costs.

15. It is made clear that any observations 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 own merits uninfluenced by the said observations.

                                                                              (ABHAY AHUJA, J.)




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Signed by: Kiran S. Ghuge
Designation: PA To Honourable Judge
Date: 07/09/2023 21:14:44