Bombay High Court
Sumant Suresh Jain vs Anamika Sumant Jain on 13 October, 2025
2025:BHC-AS:44392
Diksha Rane 55 MCA 802025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISC. CIVIL APPLICATION NO.80/2025
SUMANT SURESH JAIN & ORS. ..APPLICANTS
VS
ANAMIKA SUMANT JAIN ..RESPONDENT
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Mr. Dushyant Purekar a/w. Mr. Rajat Dedhia for applicants.
Mr. Sushil Shukla i/b. Ms. Janki Sampat for respondent.
------------
CORAM : RAJESH S. PATIL, J.
DATE : 13 OCTOBER 2025.
P.C. :
1. This interim application has been filed by the applicant no.1,
husband of the respondent seeking transfer of domestic violence
proceedings pending before 26 th Metropolitan Magistrate Court,
Borivali to the Family Court at Bandra.
2. After hearing the learned counsel for both parties, when this
Court expressed its disinclination, Mr. Purekar, learned counsel for
the applicant submitted that he has no instructions to withdraw the
present application and the Court can pass order on merits.
3. The applicant no.1- husband has filed the present transfer
proceedings. He has also filed a divorce petition before the Family
Court at Bandra wherein he has already filed his affidavit of evidence
Diksha Rane 55 MCA 802025.doc
and now the matter is kept for cross-examination to be conducted by
the learned counsel for the respondent-wife. It is further submitted
on behalf of the applicant that he is working as a sales executive with
M/s. Ajit Power Solutions. The domestic violence proceeding has
been filed before the Metropolitan Magistrate at Borivali so also a
complaint under Section 498-A of the Indian Penal Code has been
filed before the Metropolitan Magistrate Court at Borivali. In the
interest of both the parties, the domestic violence proceeding should
be clubbed with the divorce petition which is pending before the
Family Court at Bandra.
4. Learned counsel appearing on behalf of the respondent-wife
submitted that there is an order passed of interim maintenance to be
paid of Rs.5000/-per month. However, till date, no amount has been
paid and the arrears has gone upto to Rs.65,000/- as on date. The
respondent-wife is staying with her parents at Borivali, Mumbai and
she is a housewife. She has filed the domestic violence proceedings
before the Metropolitan Magistrate Court at Borivali and also one
proceeding under Section 498-A of the Indian Penal Code before the
Metropolitan Magistrate Court at Borivali. In any case, even though
for a minute it is presumed that the domestic violence proceedings
are transferred to the Family Court at Bandra, Section 498-A
Diksha Rane 55 MCA 802025.doc
complaint under the Indian Penal Code could not be transferred to
the Family Court at Bandra. The matter before the Family Court at
Bandra i.e. the divorce proceedings has also reached to the evidence
stage and the matter is now kept for cross-examination. Therefore,
the application for transfer of the present proceeding has to be
rejected.
5. Considering the law as laid down by the Supreme Court in the
case of N.C.V. Aishwarya Versus A.S. Saravana Karthik Sha, reported
in 2022 SCC OnLine SC 1199, wherein the Supreme Court concludes
that it is the convenience of the wife which has to be taken into
consideration while dealing with the transfer proceeding. Paragraph
9 of the said decision reads 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 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 wife's convenience which must be looked at while
considering transfer.
(Emphasis supplied)
6. In the case of Jyoti Abhijeet Kandage vs. Abhijeet Narayan
Diksha Rane 55 MCA 802025.doc
Kandage (Misc. Civil Application No.239 of 2024), I have considered
all the provisions as far as transfer proceedings are concerned. In
paragraph No.15 and 15.2, it has been held as under :-
"15) Considering the Sections of D.V. Act, and the Judgments
discussed in the above paragraphs, it becomes evident that Family
Court has power to decide complaint which seeks relief under
Sections 18 to 22 of the D.V. Act. Hence in my opinion, transfer of
proceedings from Magistrate's Court to Family Court pertaining to
relief claimed under Section 18 to 22 of the D.V. Act can be
allowed. However, if a transfer proceedings is not a bonafide one,
then on merits such a transfer on case to case basis can be rejected.
One has to also keep in mind the stage of the proceedings of which
transfer is sought.
15.2) So also, one has to also keep in mind who is coming to the
court for the transfer of the proceedings, whether it is the Wife or
the Husband or any other party. Since a choice is given to the
aggrieved person under the D.V. Act to choose the forum for reliefs
sought under Section 18 to 22, (i.e.) before the Magistrate under
Section 12 or to the civil court, family court or criminal court under
Section 26, such transfer if sought by a Wife, considering the
judgment of the Supreme Court in the case of N.C.V. Aishwarya
(supra) will have to be considered favourably."
7. Therefore, as per the judgment of the Supreme Court in the
case of N.C.V. Aishwarya (supra), the convenience of the wife has
taken into consideration. So also, as held by me in the judgment of
Jyoti Abhijeet Kandage (supra), it is the respondent-wife who has the
right to choose the forum. Apart from this fact, it is pertinent to note
in the present proceeding that the arrears of Rs.65,000/- as of today
and the divorce proceeding has reached to the stage of evidence
where the applicant-husband has already filed his affidavit of
evidence and the now the matter is kept for cross-examination.
Diksha Rane 55 MCA 802025.doc
Therefore, according to me, there is no merit in the present
proceeding and the same is filed with ulterior motive, at a stage
when in divorce proceeding, evidence has started. The applicant no.1
is in arrears of maintenance to be paid to wife.
8. Misc. Civil Application stands rejected with cost of Rs.25,000/-
to be paid to the respondent-wife within a period of four weeks from
today.
9. The Misc. Civil Application stands disposed of accordingly.
(Rajesh S. Patil, J.)
Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 13/10/2025 21:44:10
