1 mca26-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa MISC. CIVIL APPLICATION NO. 26 OF 2011 Shubhangi Rajratna Kadam .. Applicant V/s. Rajratna Vithalrao Kadam .. Respondent ALONGWITH MISC. CIVIL APPLICATION NO. 57 OF 2011 Rajratna Vithalrao Kadam .. Applicant V/s. Shubhangi Rajratna Kadam .. Respondent ..... Ms. Sonia Miskin for the applicant in Misc. Civil Application No.26 of 2011 and for the respondent in Misc. Civil Application No. 57 of 2011. Ms. D. S. Sapkal for the respondent in Misc. Civil Application No. 26 of 2011 and for the applicant in Misc. Civil Application No.57 of 2011. ..... CORAM : A. S. OKA, J. DATE : MAY 4, 2011. P.C.:- Heard the learned counsel appearing for the parties. 2. On 14th March, 2011, parties to the applications were put to notice that the applications will be heard finally. The applicant in M.C.A. No. 26 of 2011 is the wife and respondent therein is the husband. The 2 mca26-11 husband has filed a petition under Section 10 read with Section 13(1) of the Hindu Marriage Act, 1955, in Family Court at Bandra, Mumbai. The said petition was filed on 6th February, 2010. Within one month thereafter, the wife has filed a petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights in the Family Court at Pune. The prayer made by the wife in Misc. Civil Application No.26 of 2011, is for transfer of the petition filed in the Family Court at Bandra, Mumbai to the Family Court at Pune. The prayer made in Misc. Civil Application No.57 of 2011 filed by the husband is for transfer of the matter pending in the Family Court at Pune to the Family Court at Bandra, Mumbai. 3. The learned counsel appearing for the wife invited attention of the Court to paragraph No. 7 of Misc. Civil Application No.26 of 2011. The relevant part of the paragraph No. 7 reads thus: “ The applicant states and submits that the facts stated in both the M. J. Petition are same. The parties are also same. The witnesses to be examined are at Pune. The evidence in both the matters will be common. The applicant further submits that her brother are residing separately and she is staying with her parents. Her father is 76 years old and mother is 70 years old. Her father is suffering from kidney ailment and his one kidney has been removed. Her brothers are in private service and cannot take leave to accompany her to Mumbai on the court date. She has no relative in Mumbai. The applicant further submits that, therefore, 3 mca26-11 although she receives Rs.500/- as traveling expenses it is difficult for the applicant to come to Mumbai on each date during trial.” The wife claims to be the resident of Khadki in Pune. The husband is admittedly residing at Mulund in Mumbai. 4. The learned counsel appearing for the husband submitted that the matrimonial petition filed by the husband is prior in point of time. He submitted that the husband is employed in a private company in Mumbai and he finds it very difficult to obtain a leave to attend the Family Court at Pune. He submitted that in the past, the members of the family of the wife have given threats to the husband. He submitted that it will cause great inconvenience to the husband if the petition is transferred to the Family Court at Pune. He submitted that the husband is paying Rs.400/- per trip to the wife for attending the Family Court at Mumbai. Lastly, he submitted that the private notice of the Misc. Civil Application sent to the wife at the address at Khadki is returned unserved. He, therefore, submits that the wife is not residing at Khadki, Pune. 5. There is no dispute between the parties that both the matrimonial petitions will have to be heard by one and the same Court. As a result 4 mca26-11 of passing an order of transfer, one of the parties is bound to suffer some prejudice. The wife has stated in her application that she is staying with her parents at Khadki, Pune. She stated that her father is 76 years old who is suffering from kidney ailment and one of his kidneys is removed. Her mother is 70 years old. It is stated that her brothers cannot accompany her to Mumbai as they are in private service. On the other hand, the inconvenience pleaded by the husband is that he is employed in Mumbai and that he may not get leave for attending the Family Court at Pune. As far as the contention regarding the threats is concerned, the husband can always approach the police machinery in case of such threats. 6. The wife is residing with her old parents and her father is suffering from kidney ailment and his only one kidney is functioning. Therefore, if both the petitions are transfered to the Family Court at Bandra, Mumbai, more inconvenience will be caused to the wife than the inconvenience which may be caused to the husband if both the petitions are transfered to the Family Court at Pune. Hence, the Misc. Civil Application by wife will have to be allowed. Merely because the notice issued by the advocate for the husband at the Khadki address of the wife is returned unserved, one cannot jump to the conclusion that 5 mca26-11 the wife is not a resident of Pune. 7. Hence, I pass the following order: :: O R D E R :: i. Misc. Civil Application No.26 of 2011 is allowed in terms of prayer clause (a). It is obvious that the wife will not be entitled to claim any travelling charges from the husband. ii. Misc. Civil Application No.57 of 2011 is rejected. JUDGE