1 mca7.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD MISC. CIVIL APPLICATION NO. 7 OF 2011 Nilima w/o Pavansingh Pardeshi, Age: 24 years, Occ: Household., R/o. C/o. Premsingh s/o Gopalsingh Thakur, N-9, K, 15/2, Pavannagar, CIDCO, Aurangabad. ...APPLICANT VERSUS Pavansingh s/o Jeevansingh Pardeshi, Age: 28 years, Occ: Service, R/o. 46, Ingale Layout, Bhamati Parsodi, Ring Ward, Near Nagaba Temple, Trimurtinagar, Nagpur. ...RESPONDENT ... Mrs. C.E. Gaikwad, Advocate for applicant. Mr. D.M. Kale, Advocate for respondent (Absent). ... CORAM: S.S. SHINDE, J. DATE : 30TH SEPTEMBER, 2011 ORAL JUDGMENT : . Heard learned Counsel appearing for the applicant. On 05-09-2011 when this Court heard this application, Rule was issued, which was made returnable on 30-09-2011. Though the respondent 2 mca7.11 is served and affidavit in reply is filed, none appeared for the respondent. 2. Since the matter relates to matrimonial dispute, is required to be disposed of on priority basis. This application is filed by the applicant wife for the transfer of the proceedings which are filed by the respondent husband at Nagpur. 3. It is the case of the applicant that, on 21-06-2010 the applicant and the respondent performed the marriage. The applicant went to Nagpur for cohabitation. The applicant came to know that the respondent herein is suffering from schizophrenia and under the treatment of Psychiatric Dr. Bhave of Nagpur. On 03-10-2010 the applicant came to Aurangabad to her parent's house. On 27-10-2010 the brother of the applicant went to Nagpur and met Dr. Bhave alongwith the respondent. On 18-11-2010 meeting was called for compromise at Aurangabad, however, the respondent did not attend the said meeting since his relative 3 mca7.11 was seriously ill and died on 21-10-2010. . It is further case of the applicant that, on 22-11-2010 the respondent filed petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act bearing No. A-934/2010 before the 4th Family Court at Nagpur. On 13-12-2010 the notice of the said petition is served on the applicant. On 05-01-2011 the parents of the applicant met to Dr. Bhave at Nagpur. 4. On 10-01-2011 the applicant herein filed petition under Section 12(1)(b) of the Hindu Marriage Act for the nullity of marriage before the Family Court at Aurangabad. 5. It is the case of the applicant that, the distance between Aurangabad to Nagpur is approximately 500 Kms. and therefore, it is not possible for the applicant to travel from Aurangabad to Nagpur on every date as directed by the Court at Nagpur where the petition filed by 4 mca7.11 the husband is pending. The applicant has also expressed inability to go to Nagpur. Following grounds are taken in this Misc. Civil Application by the applicant : (I) The petitioner is a women litigant and she is unable to go to Nagpur to attend the matter before the Family Court Nagpur. (II) The petitioner has already filed the Petition No. A-8/2011 under Section 12(1) (b) of Hindu Marriage Act 1955 for the nullity of marriage before the Family Court of Aurangabad. (III) The respondent has filed the petition No. A-934/2010 before the Family Court Nagpur under section 9 of the Hindu Marriage Act for the restitution of conjugal rights. (IV) The petitioner submits that the Written Statement of the petitioner to the petition No. A-934 of the 2010 of the respondent and petition No. A-8/2011, filed by the petitioner the contents of the Written Statement and petition are one and the 5 mca7.11 same. (V) The section 19 (iii-a) of the Hindu Marriage Act 1955 specifically stated that whether the petitioner wife is residing on the date of present where the petition, then that court has jurisdiction to try and entertain the petition. The petitioner is also residing at Aurangabad with her parents. (VI) The petitioner submits that the respondent attends the petition No. A-8/11 before the Family Court Aurangabad each and every date, if the petition No. A-934/2010 is transferred to Aurangabad both the matters clubbed together and it is convenient for the respondent. (VII) The section 24 of Civil Procedure Code is very clear and in view of the provisions laid down under section 24 of Civil Procedure Code the Petition No. A-934/2010 of the Family Court Nagpur is required to be transferred to Family Court Aurangabad. In view of section 24 of Civil Procedure Code convenience of the petitioner is to be considered. 6 mca7.11 (VIII) It will be very convenient for the petitioner being wife of the respondent to attend the said petition No. A-934/2010 of the respondent husband after his transferred from Family Court of Nagpur to Family Court Aurangabad. (IX) As a marriage place of petitioner and respondent is at Aurangabad and Family Court Aurangabad is very well available at Aurangabad. At present petitioner is residing at Aurangabad. Above referred case is going on at Aurangabad. The Family Court Aurangabad is a proper forum/court having jurisdiction. Therefore, in the interest of justice and for observing the convenience of the petitioner being wife of the respondent, it will be just proper and legal one to transfer the petition No. A-934/2010 of the respondent from the Fourth Family Court Nagpur to Family Court Aurangabad. (x) The Family Court Aurangabad having proper jurisdiction in respect of matrimonial dispose between the petitioner and respondent. 7 mca7.11 6. Therefore, learned Counsel appearing for the applicant relying upon the grounds taken in the application and annexures thereto, would submit that, this application deserves to be allowed. 7. The respondent has filed affidavit in reply. It is stated in the affidavit in reply that, the applicant herein has left matrimonial home on 03-10-2010. Thereafter at the instance and request of the respondent and his parents on 27-10-2010, brother of the applicant Nilesh came at Nagpur and alongwith him, the respondent had gone to Dr. Bhave's clinic. Thereupon, Dr. Bhave clearly opined that the respondent is fit for successful marital life and he is not suffering from any mental disorder problem. Dr. Bhave specifically asked to the brother of the applicant that, why he came alone and the applicant and her father has not came alongwith him to discuss to him on this issue. The brother of the applicant 8 mca7.11 Nilesh said that the applicant and his father are not interested to verify the same. It is further stated in the affidavit in reply that, the respondent and his relatives were tried their level best to establish the contact with the father of the applicant to settle the matter so that the respondent and applicant would lead their happy married life. But despite several phone calls neither applicant nor her father or relatives wants to come forward for discussion to settle the married life of the respondent and applicant. On the contrary, the father and brother of the applicant blamed that the respondent is mental and therefore, he is undergoing the treatment of Dr. Bhave. . It is further stated in the affidavit in reply that, at the time of settlement of marriage the father of respondent has has disclosed all the things about the respondent's life with the applicant and her father and relatives. It is further stated that, middle man in the engagement 9 mca7.11 of the settlement of the marriage Mr. Ravindra Thakur, resident of Nagpur and Shri. Narayansing Sher resident of Wardha has also clearly disclosed that when the respondent was taking education of Engineering Diploma in Mechanical Engineering he could not succeed in Second Year Examination therefore he was in depression, then he approached to Dr. Bhave, Psychiatrist, Nagpur for treatment of depression and thereafter he was out of depression and successfully completed his education and obtained Diploma of Mechanical Engineering and secured the private job. It is further stated that, even today the respondent is going to routine check up after 2 or 3 months at Dr. Bhave's clinic. The father of the applicant as well as the applicant gone through the treatment papers of respondent and after consultation the applicant and her father has disclosed that they have no objection or problem about the same. The father of applicant has said that as on today the respondent is well to do and on account of his intellectualness he could 10 mca7.11 secured job with the private company that too after going through the selection process of the Company. . It is further stated in the affidavit in reply that, it is true that the applicant is residing at Aurangabad and Aurangabad is about 600 kms. away from Nagpur. The respondent filed Petition on 22-11-2010 for restitution of conjugal rights before the learned Family Court No.4 Nagpur vide Petition NO. A-934 of 2010. After receipt of the notice from the Family Court No.4, Nagpur the applicant has to appear on 05-01-2011 before the Family Court, Nagpur. The applicant despite receipt of the notice from the Family Court, Nagpur remained absent and till today she has not remained present on any date before the learned Family Court No. 4 Nagpur. . It is further submitted in the affidavit in reply that, without showing any bona fides to obey the orders passed by the Learned Family Court 11 mca7.11 No.4 Nagpur, the applicant choose to file Petition under section 12(1)(b) of Hindu Marriage Act, 1955 for nullity of marriage vide Petition No. B-8/2011 on 10-01-2011. It is further submitted that, the petitioner has fairly admits that "the matter is filed before the Family Court, Aurangabad which is convenient to the petitioner" which clearly demonstrates that after receipt of the notice from the Family Court, Nagpur after though, for the sake of convenience, without showing any bona fide reason, the applicant has filed petition before the Family Court, Aurangabad, just to create a ground to file present application before this Hon'ble Court. It is further submitted that, the applicant does not want to follow or obey the order passed by the learned Family Court No. 4 Nagpur and has only interest to harass the respondent husband by way of multiple litigations. . It is further stated in the affidavit in reply that, the applicant has made a wrong statement before this Court i.e. "the respondent 12 mca7.11 also comes to Aurangabad to attend the Family Court." It is submitted that the applicant must be serious about the first statement made before this Court till swearing of the affidavit in the present application, the respondent has not attended any time before the learned Family Court at Aurangabad. Hence, on this count alone, the present application needs to be rejected and the reasons mentioned in the application for transfer of Petition cannot be considered as a bona fide reason and this Court will not permit to file frivolous litigation just to harass at the hands of this Court or to use the Court proceedings as weapon. The contentions of the applicant are not sustainable in the eyes of law, hence the present application needs to be rejected. . It is further submitted in the affidavit in reply that, the petitioner is a wife of respondent but that does not itself make her unable to attend the Family Court at Nagpur. It is submitted that respondent husband filed 13 mca7.11 Petition for restitution of conjugal rights before the Family Court at Nagpur just to preserve the marriage which was settled after understanding the facts about the respondent husband and hence the applicant has not made out any case to transfer the Petition pending before the learned Family Court No. 4 Nagpur, same needs to be rejected. . It is further stated in the affidavit in reply that, the applicant has not come up with any bona fide reasons which can be considered in the eyes of law. The applicant has not attended on single occasion before the learned Family Court No. 4 Nagpur. As the applicant is moder and education woman and there is no inability on her part to attend the Family Court at Nagpur for the relief as she prayed for. It is further submitted that, the Petition filed by the applicant at Aurangabad for the nullity of marriage just for the sake of harassment and to create a ground to transfer the Petition filed by the respondent for restitution of conjugal rights at Nagpur. It is 14 mca7.11 submitted that, the petition filed by applicant before the Family Court, Aurangabad which is subsequent to the petition filed by the respondent at Family Court, Nagpur and that too after the service of notice from Family Court, Nagpur. The act of the applicant just to frustrate the matter of restitution of conjugal rights pending at Family Court, Nagpur, the petition for nullity of marriage at Family Court, Aurangabad was filed after thought. . It is further submitted in the affidavit in reply that, nearly one month after receipt of summons from Family Court, Nagpur, the applicant has drafted the petition for nullity of marriage just to create a ground to transfer the petition. The applicant without filing written statement before the Family Court, Nagpur has made absolutely false statement before this Court. Though the contents of written statement may be somewhat similar but both the cases have to be proved independently depending upon the pleadings 15 mca7.11 of the respective parties and therefore it will not be proper to transfer the matter and to get the witnesses at the Family Court, Aurangabad for proving the case of respondent. This is not only abuse of the process of law but also clear case of disobedience of Court's order. . It is further submitted in the said affidavit in reply that, the applicant has left her matrimonial home at her own accord and without any pre-intimation to the respondent or his family members and the applicant has left her matrimonial home without any reasonable excuse. Therefore, as cause of action arose at Nagpur, there is no need to transfer the petition pending before Family Court, Nagpur at Family Court, Aurangabad. It is further submitted that, Section 24 of the Code of the Civil Procedure does not provide that each and every case filed by the husband/respondent should be transferred to the place where wife resides or for the convenience of wife only and therefore no transfer of case is warranted for, in this matter. 16 mca7.11 . It is further submitted in the affidavit in reply that, it cannot be justified to look into the convenience of the wife being a woman. The other fact of the matter should be looked into, that the respondent/husband has to maintain the family by earning his livelihood and it will not be proper specifically in a private job to avail the leave and to attend the Court matters when the applicant has left the house without any reasonable excuse. It is further submitted in the affidavit in reply that, the Petition No. A-934/2010 of respondent pending at Nagpur is for restitution of conjugal rights and as the cause of action arose at Nagpur only Family Court at Nagpur will have jurisdiction to entertain that petition. As marriage was performed at Aurangabad, the Family Court at Aurangabad will have jurisdiction to deal with the petition of the applicant for nullity of marriage. It is submitted that, the petition for nullity of marriage filed by the applicant, after receipt of the notice in the said 17 mca7.11 matter from the Family Court, Nagpur. This is being done not only to frustrate the petition of the respondent but also to disobey the orders of the Family Court to remain present in the matter. It is further submitted that, applicant never remained present before the Family Court, Nagpur and on the other hand, she filed petition for nullity of marriage and the present petition to harass the respondent. . It is further submitted in the affidavit in reply that, the respondent though is suffering from nervous illness, his illness is not of such a grave nature that he will not be able to lead marital life and Dr. Bhave has certified on 19-01-2011 after thorough examination that no abnormal mental signs could be found on that day. The applicant left the house of respondent on illogical footing when she was pre-intimated regarding the illness of the respondent before settlement of marriage as per her whims and caprices. It is further submitted that, the 18 mca7.11 applicant has represented the fact of nervous illness to that of schizophrenia for getting decree of nullity as well as to harass the respondent with transfer of case pending at Family Court at Nagpur to Family Court, Aurangabad. It is submitted that, the applicant cannot seek any relief by making false statement before this Court. It is further submitted that, the applicant has not approached this Court with clean hands. The ad interim relief granted by this Court as to prayer clause (D) needs to be vacated, in the interest of justice. As the applicant has made false statement on affidavit before this Court, the applicant is at all not entitled for any relief as prayed for. 8. I have given due consideration to the submissions of the learned Counsel for the applicant. Perused the affidavit in reply filed by the respondent. I am of the considered opinion that, the application is required to be allowed on the ground that, if the proceedings filed by the 19 mca7.11 respondent husband at Nagpur are not transferred to Aurangabad, in that case, great inconvenience will be caused to the applicant wife. It is not in dispute that, the applicant is not working anywhere and she has no independent source of income to travel to Nagpur. From perusal of the affidavit in reply filed by the respondent husband, no any willingness is shown by the husband to bear the traveling expenses of the applicant, in case if the applicant has to travel on various dates fixed by the Court at Nagpur in the petition filed by the husband. . The Hon'ble Supreme Court in the case of Sumit Singh vs. Kumar Sanjay reported in (2001) 10 S.C.C. 41 held that, the proceedings filed by husband against his wife in Ara, Bhojpur, Bihar - wife residing in Delhi expressing her inability to contest the said case in Ara, it is the husband's suit against the wife and therefore convenience of the wife must be looked at. Therefore, in the facts of that case, Supreme Court transferred the 20 mca7.11 proceedings from Ara to Delhi. Yet in another case of Mona Aresh Goel vs. Aresh Satya Goel reported in (2000) 9 S.C.C. 255, the Hon'ble Supreme Court taking into consideration the fact that, the wife has no independent income and that her parents are not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings, allowed the transfer petition filed by the wife. 9. The Petition No. A-934/2010 filed by the respondent herein under Section 9 of the Hindu Marriage Act stands transfered from the 4th Family Court, Nagpur to the Family Court, Aurangabad. 4th Family Court, Nagpur to take necessary steps to transfer the said proceedings pending before him forthwith, as soon as he receives the order passed by this Court. 10. Misc. Civil Application is allowed on the above terms and stands disposed of. 21 mca7.11 11. Rule made absolute in the above terms. sd/- [S.S. SHINDE, J.] sut/SEP11