8.MCA.34-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISC. CIVIL APPLICATION NO.34 OF 2009 Smt.Asha Ashok Bagul. ..Applicant. Versus Shri Ashok Babulal Bagul. ..Respondent. .... None for the Applicant. Mr.P.D. Dalvi, Advocate for the Respondent. .... CORAM : A.R. JOSHI,J. DATED : 1ST OCTOBER, 2009 P.C.:- 1. Rule. Rule is made returnable forthwith. 2. Heard learned Advocate Mr.Dalvi for the respondent-husband. Though there is no opportunity for this Court to hear the Advocate for the applicant-wife, after hearing the learned Advocate for the respondent and after going through the documents and the pleadings of the parties regarding matrimonial disputes, in the opinion of this Court, the present M.C.A. is required to be disposed of at this stage itself. 3. Admittedly the marriage between the parties took place in 8.MCA.34-09 2 May, 1993. However, subsequently within 4-5 months, the wife i.e. present applicant allegedly left the matrimonial house. However, according to her she was tortured and ill- treated. She preferred application for maintenance under Section 125 of Cr.P.C. in May, 1998 and the same was decided by J.M.F.C. at Ulhasnagar, District – Thane in January, 1999 allowing maintenance of Rs.400/- per month to the wife. As per the averments mentioned in the reply filed by the applicant-wife to the Petition of divorce filed by the husband, she was not given the said maintenance amount after one year after passing of the order i.e. only upto one year she was given the said maintenance. On asking by this Court to the learned Advocate for the respondent-husband, there is nothing shown to the Court whether the order was subsequently complied with. Present respondent-husband preferred Marriage Petition No.262 of 2006 before the C.J.S.D. at Kalyan for divorce on the ground of desertion. The said application was resisted by the present applicant- wife. So also, she preferred an application under Section 24 8.MCA.34-09 3 of Hindu Marriage Act for interim alimony and mentioned in the application that the husband is earning Rs.15,000/- by way of his service as a Primary Teacher and additional Rs. 15,000/- per month by way of tuitions. It is brought to the notice of this Court that the said interim alimony application filed on 16th March, 2007 is still pending and now after filing of the present M.C.A. before this Court, all the proceedings are stayed which are pending before the C.J.S.D. at Kalyan, District – Thane. 4. During the arguments, learned Advocate Mr.Dalvi for the respondent-husband submitted that instead of transferring the matter pending before the C.J.S.D. at Kalyan, District – Thane to appropriate Court of competent jurisdiction at Nashik District, certain directions be given to the respondent to give certain costs/expenses for the wife to attend the matter at Kalyan. Had it been the question of only financial inability of the wife, the position would have been different, but, there are also allegations against the husband of assault and as such criminal complaint also came to be filed with 8.MCA.34-09 4 Kalyan police for the offence punishable under Section 323 and 504 of Indian Penal Code and such complaint was lodged on 11th September, 2008. Though such allegations are refuted on behalf of the husband, still it shows that apart from the financial inability there is another ground for transfer that admittedly the applicant-wife is staying at Nashik with the help of her brother and under his shelter. Otherwise also the offer given by the respondent-husband is required to be tested – whether it is genuine one. On this aspect, there is nothing shown to the Court that till date the respondent-husband complied the order of maintenance passed in the year, 1999 by J.M.F.C. at Ulhasnagar and it was infact a meager amount of Rs.400/- per month for maintenance. 5. Under the above circumstances, in the opinion of this Court, it would be in the fitness of situation to transfer the marriage petition for divorce preferred by the respondent-husband to the appropriate Court at Nashik, with specific directions to the concerned transferee Court to expeditiously deal with the 8.MCA.34-09 5 matter and also incidental pending applications and specifically the application under Section 24 of Hindu Marriage Act. Hence, the following order : :: O R D E R :: [i] Misc.Civil Appeal No.34 of 2009 is allowed; [ii] Hindu Marriage Petition No.262 of 2006 pending before the C.J.S.D. Kalyan, District – Thane is transferred to C.J.S.D. at District – Nashik along with all incidental applications. Specific directions are given to the concerned Court at Nashik to expeditiously deal with the matter and dispose of the divorce petition along with incidental applications, preferably within six months from receipt of the order of this Court. [iii] Misc.Civil Application is disposed of accordingly. (A.R.JOSHI,J)