Bombay High Court
Sheetal Nilesh Dahanukar vs Nilesh Purshottam Dahanukar on 1 August, 2025
2025:BHC-AS:32553 8-MCA-253-2022.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS CIVIL APPLICATION NO.253 OF 2022
Sheetal Nilesh Dahanukar
Age : 36 years Occupation: Housewife
Address : 406, Fortuna A Wing
The Walk Hiranandani Estate
Patilpada, Thane,
Maharashtra, 400 607 ....Applicant
Versus
Nilesh Purshottam Dahanukar
Age : 41 years Occupation : Business
Address : Flat No.7, Shri Ram Apartment,
Anandwan Colony Near Boys Town School,
Nashik, Maharashtra 422 005 ....Respondent
[
___________________
Mr. Pritesh Burad a/w Mr. Amey Kanse and Mr. Kaustubh
Kachey i/b. Mr. Pushkar Naik, for the Applicant.
Mr. Nitin Gangal a/w Ms. Namita Mestry and Ms. Prapti
Karkera, for the Respondent.
___________________
CORAM : MANJUSHA DESHPANDE, J.
RESERVED ON : 10th JULY, 2025
PRONOUNCED ON : 01st AUGUST, 2025
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JUDGMENT :
1) The Petitioner-Wife by way of this Application is seeking
transfer of Divorce Petition No. A/74/2022, Custody Petition No.
D/10/2021 and Restitution of Conjugal Rights Application No.
A/601/2021, from the Family Court, Nashik to the Family Court
Thane, as well as Domestic Violence Application No. 577 of
2021 from Joint Civil Judge Senior Division and Additional
Judicial Magistrate, Nashik to Family Court, Thane.
2) The Applicant claims, she is a housewife and presently
residing at Thane. The marriage between the parties was
solemized in Dahanu on 09.12.2008 and they are blessed with a
daughter Ms. Saanvi, who was aged 9 years when the present
Application was filed in the year 2022. The Applicant has filed
the present Application seeking transfer of the above
proceedings pending at Nashik to the Family Court Thane as
well as District and Sessions Court, Thane.
3) According to the Applicant, due to the immense pressure
and the mental torture, coupled with physical abuse at the
hands of Respondent and his Family, she has been diagnosed
with Occipital Neuralgia for which she is undergoing
treatment. On the ground of fear not only for her own life, but
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also for her daughter Saanvi, she was forced to leave her
matrimonial house on 24.04.2021, during the COVID-19
Lockdown. After moving out of her matrimonial house, she
started residing with her parents at Dahanu and thereafter,
she was staying in a rented accommodation along with her
daughter at Nashik.
4) While staying apart from her husband, there are
proceedings that have been filed by the parties against each
other. Following proceedings are pending between the parties
[i] The Applicant filed FIR No. 126 of 2021 at the Police
Station, Dahanu, against her husband for the offences
punishable under Sections 498-A, 325, 504 and 506 of the
Indian Penal Code dated 12.05.2021.
[ii] The Respondent-Husband filed Custody Petition No.
D/10/2021 under Sections 7, 8 and 10 of the Guardians and
Wards Act, 1980 r/w Sections 6 and 13 of the Hindu Minority
and Guardianship Act, 1956 and Section 7(G) of the Family
Courts Act, 1984, before the Family Court, Thane.
[iii] The Respondent-Husband filed Application for Restitution
of Conjugal Rights No. A/601/2021 under Section 9 of the
Hindu Marriage Act, 1955 ("HMA") on 08.10.2021 at the
Family Court, Nashik.
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[iv] The Applicant filed Domestic Violence Complaint No. 577
of 2021 before the District and Sessions Court, Nashik, seeking
reliefs under Sections 12, 17, 18, 19, 20, 21, 22 and 23 of the
Protection of Women from Domestic Violence Act, 2005 on
07.12.2021.
[v] The Applicant filed Complaint No. 1290 of 2021 under
Section 156(3) of the Cr.P.C. against the Respondent before the
Judicial Magistrate First Class, Nashik ("JMFC") for offence of
forging documents.
[vi] The Applicant filed Divorce Petition No. A/74/2022,
against the Respondent under Section13(1) (i-a) of the HMA at
Family Court, Nashik on 28.01.2022.
5) During the pendency of the proceedings as stated
hereinabove, the Applicant had filed Miscellaneous Application
No. 183 of 2022 under Section 24 of the Code of Civil Procedure,
1908 ("CPC") before this Court seeking transfer of matrimonial
proceedings from the Family Court, Nashik to the Family
Court, Bandra on 04.04.2022.
6) Considering that the Applicant was still under the process
of relocating to Bandra, this Court granted liberty to the
Petitioner to withdraw the Application, since she had not moved
and was under the process of relocating to Bandra.
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7) The Applicant instead of relocating to Bandra relocated to
Thane in June, 2022. On 11.06.2022, an Agreement for 1 BHK
flat was executed at 406, Fortuna A Wing, The Walk
Hiranandani Estate Patilpada, Thane, on leave and licence
basis.
8) Hence, she has again filed the present Application on the
following grounds :
(a) She and her daughter are permanently residing at Thane.
(b) She would be put to great inconvenience, if she is required
repeatedly to travel from Thane to Nashik, along with her
daughter for attending the legal proceedings.
(c) She is not in a position to leave her daughter for a long
time for attending the Court proceedings at Nashik since the
daughter is only nine years old.
(d) She being a housewife, she has no source of income and
her finances do not permit additional expenses of hiring legal
assistance in Nashik.
(e) In 4th Wave of COVID-19 Pandemic, she has expressed
fear for safety of her daughter and herself for any outstation
travel.
9) With the above grounds, she has filed the present
Application. It is further contended that, an incident had
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occurred where her daughter had gone missing from the School.
Later on, she came to know from the School Authorities that,
she was picked up by her mother-in-law from the School
without her knowledge.
10) The Applicant has sought leave to amend and has brought
the subsequent development which have occurred during the
pendency of the present Application by adding Rider-1. In the
said Rider, it is averred that, during the pendency of the
present Application, the Respondent had preferred Interim
Application on 29.09.2022, for interim custody of their daughter
in the Guardianship Petition before the Family Court at
Nashik.
11) The Judge, Family Court, Nashik, vide order dated
21.12.2022, passed below Exhibit 83, by granting interim
custody of the minor daughter to the Respondent. Since the
Applicant was not granted access, she filed Guardianship
Petition No. D/01/2023 with a prayer for permanent custody
and for access, of the daughter vide order dated 13.01.2023, the
Family Court allowed interim access to the Applicant.
12) The Applicant has also filed Writ Petition No. 2829 of
2023, before this Court against the order granting interim
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custody to the Respondent-Husband, which is still pending
consideration before this Court.
13) Learned Advocate for the Applicant submits that, though
previously her Miscellaneous Application was required to be
withdrawn, since she had not actually shifted to Bandra, but
under process of relocation, the Application was required to be
withdrawn. However, now, the Applicant does not propose to
change her mind. She is permanently residing at Thane. She
has obtained a flat on Leave and License basis at Hiranandani
Estate Patilpada, Thane. Hence, the proceeding which were
filed at Nashik either by the Applicant or by the Respondent are
required to be transferred to the Family Court, Thane. The
travel to Nashik for attending each of the proceedings, causes
great inconvenience to her. Since she is not earning and is a
housewife, she is not able to bear of travelling as well as the
legal expenses. Her finances are not in a sound state. Her
parents are residing at Dahanu, which is near to Thane.
Therefore, she has decided to reside at Thane.
14) It is submitted that, she has no logistic and the financial
support, therefore, if she is required to travel for each of the
matters, on each of the dates assigned by the Courts at Nashik,
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it would be exhausting and would also put strain on her
finances.
15) Learned Advocate for the Applicant submits that, the
Applicant is invoking powers of this Court under Section 24 of
the CPC, i.e., general powers of transfer and withdrawals.
16) It is submitted by the learned Advocate for the Applicant
that, in such Applications for transfers, the convenience of wife
is always required to be given precedence over other parties and
the Courts have always favourably considered the Applications
by the wife, in case such Applications are filed. The
inconvenience of the wife, in view of her social status, her
financial capacity to contest the proceedings and the support
provided by the family are usually taken into consideration
along with the travelling expenses. If the inconvenience caused
to the wife is greater than that of the husband, the convenience
of wife is required to be preferred over that of husband.
17) Learned Advocate for the Applicant is placing reliance on
the following judgments in support of his prayer for transfer of
proceedings :
[i] N.C.V. Aishwarya V/s. A.S. Sarvana Karthik Sha1,
1 2022 SCC OnLine SC 1199
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In the above judgment, the Hon'ble Apex Court has held
that, in matrimonial matters, whenever 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, 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, under whose protective umbrella they are seeking
their sustenance to life. Given the prevailing sociol-economic
paradigm in Indian Society, generally, it is the wife's
convenience which must be looked at while considering transfer.
[ii] Rajani Kishor Pardeshi V/s. Kishor Babulal
Pardeshi2,
In the above judgment, the Hon'ble Apex has held that, in
this type of mater, the convenience of the wife is to be preferred
over the convenience of the husband.
The principles in the above mentioned judgments have
been reiterated subsequent judgments passed by the Hon'ble
Supreme Court as well as the High Courts, which are relied
upon by the Applicant.
2 (2005) 12 SCC 237
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18) Learned Advocate for the Applicant, therefore, contends
that, in view of the well recognised position of law that, the
inconvenience of the wife is to be considered, as a ground for
transfer of the proceedings as prayed by the wife, the prayer
made by the Applicant in the present Application deserves to be
granted.
19) Per contra, the learned Advocate for the Respondent
vehemently opposes the prayer and submits that, the present
Application was filed by the Applicant, on the grounds and
circumstances that were prevailing at the time of filing of
Application, but due to change in circumstances in the
interregnum, since the interim custody is handed over to the
Respondent, the grounds for transfer are no more available to
the Applicant.
20) He further submits that, though she has stated that, her
permanent address of the Applicant and her daughter now is 1
BHK flat, 406, Fortuna A Wing, The Walk Hiranandani Estate
Patilpada, Thane. However, the daughter no more resides with
the Applicant in view of the order dated 21.12.2022, passed in
the proceedings under the Guardians and Wards Act, 1980,
granting interim custody to the Respondent.
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21) Similarly, he has also drawn my attention to the
document annexed with the additional affidavit, which shows
the registration of a Company, of which the Respondent is a
Director, i.e, the Plastomax Engineering Private Limited. Her
permanent address as shown in the registration of Company is
Flat No.7, Shri Ram Apartment, PNO-37, Anandwan Colony,
Nashik, Maharashtra 42200,7 India.
22) The second ground raised by the Applicant about
inconvenience of travelling with a child from Thane to Nashik is
also presently not available. The next ground that, the
Applicant's daughter, who is nine years old, needs constant care
and attention of the mother and she is not in a position to leave
her alone for attending the Court matter also does not survive
since the custody is with the father.
23) So far as the ground that Applicant has financial
constraints, and does not possess the financial capability to
obtain additional legal assistance is concerned, it is submitted
that she has engaged a battery of lawyers in each of the
proceedings contested by her. If she has engaged so many
advocates for her legal assistance in Nashik, the question arises
how she can again avail assistance in Thane District.
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24) It is submitted that, the Petitioner has sufficient finances,
since she is a 'Director' of a Company. Hence, financial
constraints cannot be a ground. Though she has made a
categorical statement that, she had quit her job on account of
leave required to be availed and the requirement of her
presence, due to a number of ongoing litigations between them,
she does not have any permanent abode nor employment in
Thane District. Hence, there is no reason why the proceedings
should be transferred to Thane from Nashik. It is further stated
that he, along with his parents and daughter Saanvi, reside at
Nashik. He is a dutiful guardian who looks after every need of
his daughter. His parents also reside with him. They are
reasonably healthy and are willing and capable of looking after
his daughter. He, being a partner in a Company, is able to work
at his own leisure, due to which he can take good care of
Saanvi.
25) It is further stated that the Applicant herself had chosen
the jurisdiction of the Family Court, Nashik, to file proceedings
for permanent custody of the minor child. It is also stated that,
the Family Court has clubbed the proceedings regarding
Guardianship, Restitution of Conjugal Rights, Divorce Petition
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and Guardianship Petition together and has framed issues and
directed the parties to lead common evidence for final disposal.
26) Considering that the Applicant is staying alone at Thane,
has no permanent place of abode, no relatives, and no
employment in Thane District, it would not be appropriate to
transfer all the proceedings pending before the Family Court,
Nashik.
27) According to him, it would not be in the interest of his
daughter Saanvi to make her travel to Thane from Nashik on
the scheduled dates of access. Considering that he is presently
looking after his daughter's schooling and coaching, it would be
extremely inconvenient for him to travel to Thane, on each date
of hearing. It is submitted that the Applicant is a young,
educated lady who is also a Director of a Company and can
surely travel to Nashik on the scheduled dates.
28) It is further submitted that the Apex Court has time and
again reiterated that, merely the convenience of the wife cannot
be a ground to transfer pending litigation to a place of her
convenience. Hence, the Respondent has prayed that the
Application does not deserve consideration by this Court and
accordingly should be dismissed.
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29) I have heard Mr. Pritesh Burad, the learned Advocate for
the Petitioner, and Mr. Nitin Gangal, the learned Advocate for
the Respondent. After hearing the marathon arguments
advanced by the respective parties for and against the transfer
of proceedings pending before the Family Court at Nashik, this
Court is required to decide, whether an Application filed for
transfer of proceedings, relying on the circumstances prevailing
at the time of the Application, can be allowed if there is a
change in circumstances. Similarly, it also needs to be decided
whether merely on account of inconvenience caused to the wife,
the proceedings should be transferred to the place of her choice.
30) The transfer of proceedings from one District to other
District is governed by Section 24 of the CPC, which reads
thus :
"24. General power of transfer and withdrawal.-
(1) On the application of any of the parties and after
notice to the parties and after hearing such of them as
desired to be heard, or of its own motion, without such
notice, the High Court or the District Court may, at any
stage-
(a) transfer any suit, appeal or other proceeding pending
before it for trial or disposal to any Court subordinate to
it and competent to try or dispose of the same; or
(b) withdraw any suit, appeal or other proceeding
pending in any Court subordinate to it; and
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(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any
Court subordinate to it and competent to try or dispose
of the same; or
(iii) re-transfer the same for trial or disposal to the
Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or
withdrawn under sub-section (1), the Court which "[is
thereafter to try or dispose of such suit or proceeding]
may, subject to any special directions in the case of an
order of transfer, either retry it or proceed from the point
at which it was transferred or withdrawn.
(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges
shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the
execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn
under this section from a Court of Small Causes shall,
for the purposes of such suit, be deemed to be a Court of
Small Causes.
(5) A suit or proceeding may be transferred under this
section from a Court which has no jurisdiction to try it."
31) The powers for transfer of proceedings are discretionary
powers, vested in the High Courts and District Courts. The
convenience of the parties is taken into consideration, while
passing orders for transfer of suits. Usually, the convenience of
a woman litigant is given precedence over all other parties.
When the Courts are confronted with such Applications, the
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sympathies are always with the woman. Therefore, in order to
avoid inconvenience and hardship's caused to the woman
litigant, orders are usually passed in her favour. Due to the
liberal approach in favour of women litigant, there are various
judicial decisions that, support the case of a woman litigant.
32) While exercising powers under Section 24 of the CPC, the
Courts are required to take into consideration various factors
such as the economic soundness of both the parties, the social
strata of the spouses, their behavioral pattern, their standard of
life prior to marriage and subsequent thereto, and also the
circumstances of both the parties in eking out their livelihood
and under whose protective umbrella the party is residing after
the breakup of the marriage for her day-to-day needs, such as
food and shelter. Hence, upon taking into consideration the
prevailing socio-economic condition of either of the parties, a
decision is taken. Usually, the wife's convenience is given
precedence while considering the transfer, since it is presumed
that she holds a weaker position in the society as compared to
her husband.
33) In the present case, as has been pointed out, the position
of the parties has undergone a change during the pendency of
the present Miscellaneous Civil Application. The Application
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was filed by the Applicant, taking into consideration the
hardship she would be facing in commuting to Nashik, on each
date for attending the pending proceedings, along with her
daughter, who was then residing with her. However, in the
interregnum, the interim custody of the child having been
handed over to the Respondent, the grounds of hardship and
inconvenience which have been raised by the Applicant are no
more available.
34) Amongst the five grounds made out for transfer by the
Applicant, four of them are directly related to the daughter. One
being that, due to the COVID-19 pandemic, wherein she had
expressed apprehension about safety of her daughter for any
outstation travel. So far as that ground is concerned, that is no
more available, and even the other grounds regarding the
inconvenience of the daughter no more exist at present, since
interim custody is with the father. The only ground that can be
agitated by the Applicant is about the financial capability to
obtain additional legal assistance in Nashik. According to the
Applicant, she will require additional expenses for the legal
proceedings at Nashik. According to me, that ground does not
seem to be a sufficient, since the proceedings are already
underway at Nashik and ongoing. She herself has initiated
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some of the proceedings at Nashik, therefore, there is no
question of bearing additional financial burden which cannot be
sustained by her.
35) In fact, if the proceedings are transferred to Thane, she
will have to bear the additional financial burden for availing
Legal Assistance. As far as her financial capacity is concerned,
from the documents placed on record by the Respondent vide
additional affidavit dated 31.01.2023, it is revealed that the
Applicant is a 'Director' of a private company. Hence, the
ground of financial incapacity would not be available to the
Applicant.
36) While considering an Application under Section 24 of the
CPC, the comparative hardship caused to either of the parties
is required to be taken into consideration. As already observed
hereinabove, none of the grounds qua the daughter of the
Applicant, whose custody is given to the Respondent during the
pendency of the present Application, is available to the
Respondent. The only ground available to the Applicant would
be financial constraints, but that too would not be applicable to
the facts of the present case, since the Applicant is a 'Director'
of the company, namely, Plastomax Engineering Private
Limited, having its registered office at Flat No. 7, Shri Ram
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Apartment, PNO-37, Anandwan Colony, Nashik, Maharashtra
422007, India, with date of incorporation as 09.10.2020. The
document placed on record by the Respondent, which he has
obtained from the Registrar of the company, clearly discloses
that the Applicant is one of the 'Directors', along with one
Ashwini Gaurang Ghodi. Hence, financial incapacity also
cannot be a ground to grant prayer made by the Applicant.
37) On the aforementioned background, when the hardship of
either of the parties is taken into consideration, the transfer of
the proceedings as prayed for would, in fact, cause more
hardship to the Respondent-Husband, since presently he is
looking after the daughter, whose interim custody has been
transferred to him. Hence, it is the Respondent who would be
required to travel on the appointed dates for attending the
matters at Thane, leaving behind his daughter or taking the
daughter with him, which is going to cause great inconvenience
to him. The Applicant has failed to make out a case for transfer
of proceedings from Nashik to Thane, as set out in the prayer of
the Application.
38) The Applicant has failed to demonstrate the comparative
hardship, she is likely to face if the proceedings are not
transferred. Considering the changed circumstances during the
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pendency of the Miscellaneous Application. None of the grounds
raised by the Applicant are available to her as on date. The
Miscellaneous Civil Application being devoid of merits stands
dismissed.
[MANJUSHA DESHPANDE, J.]
39) After pronouncement of the judgment, the learned
Advocate for the Applicant has requested that, status quo was
granted by this Court vide order dated 07.03.2024. Therefore,
in view of the dismissal of the Miscellaneous Civil Application,
the status quo may kindly be continued for a further period of
four weeks in order to enable the Applicant to approach the
Hon'ble Supreme Court.
40) In view of the request made by the learned Advocate for
the Applicant, the status quo as granted by this Court vide
order dated 07.03.2024 shall continue to operate for a further
period of four weeks from the date of this judgment.
[MANJUSHA DESHPANDE, J.]
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