1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD MISC. CIVIL APPLICATION NO.18 OF 2008 Anisha w/o Rajkumar Lahoti alias Anisha d/o Sunil Attal, Age 21 years, Occ. Student, C/o Sunil Ramdayal Attal, R/o Bazar Peth, Sangamner, Tq. Sangamner, District Ahmednagar. ...PETITIONER VERSUS Rajkumar s/o Bhagwandas Lahoti Age 32 years, Occ. Business, R/o Chikhalwadi, Nanded. ...RESPONDENT ..... Shri A.S. Bajaj, Advocate for the petitioner Shri M.V. Ghatge, Advocate holding for Shri B.N. Gadegaonkar, Advocate for the respondent ..... CORAM : S.P. DAVARE, J. DATED : 19th & 22nd June, 2009. ORAL JUDGMENT : 19th June, 2009. 1. Perused. Rule. Rule made returnable forthwith and heard finally by consent of parties. 2. The petitioner has preferred the present Misc. Civil Application, requesting to transfer H.M.P. No.116/2008 and Regular Civil Suit No.412/2008 filed by the respondent husband before the Civil Judge, Senior Division, Nanded and Civil Judge, Junior Division, Nanded respectively to the Family Court, Aurangabad where H.M.P. No.292/2008 filed by her for divorce is pending, to be 2 heard in accordance with law at Family Court, Aurangabad. 3. It is the contention of the petitioner that the marriage between the petitioner and respondent took place on 15.2.2005 at Aurangabad, which was a love marriage. However, subsequently, there were differences between them. Due to incompatibility between the petitioner and respondent, the respondent filed H.M.P. No.116/2008 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act before Civil Judge, Senior Division, Nanded on 25.6.2008 and the same is pending before the said Court. Moreover, the respondent also filed Regular Civil Suit No.412/2008 on 21.8.2008 against the petitioner herein before Civil Judge, Junior Division, Nanded for injunction and same is also pending before the said Court. Thereafter, the petitioner filed H.M.P. No.A-292/2008 on 3.10.2008 for divorce under Section 13 of the Hindu Marriage Act before Family Court, Aurangabad and same is pending before the said Court. 4. On the face of the aforesaid position, the petitioner has filed the present Misc. Civil Application for transfer of the proceedings filed by the respondent pending before the Civil Judge, Senior Division, Nanded and pending before the Civil Judge, Junior Division, Nanded to Family Court, Aurangabad on the ground that since the respondent has threatened her and her parents, and, therefore, she has got apprehension in the mind that the respondent would take revenge against her and even may assault her, and 3 further she also has got apprehension that the possibility cannot be ruled out that she would be man-handled and insulted at the behest of the respondent. She also stated that it is extremely inconvenient for her to travel the distance between Sangamner to Nanded which is about 400 Kms. and it almost takes about 10 hours to reach from Sangamner to Nanded and two days of her father, who is a businessman, are wasted during the said visit, since the petitioner alone cannot travel and attend the Court proceedings. 5. The respondent filed an affidavit-in-reply and thereby denied the submissions and contentions made by the petitioner in the present petition specifically unless admitted therein. The respondent contends that the grounds raised in the present application for transfer are illusory and baseless and the unreasonable apprehensions posed by the applicant do not have any sanctity and it is not a legal ground for transfer of the proceedings. He further submits that another ground for transfer as regards to transfer is false and he further states that, Nanded city is well connected by rail as well as by road and the applicant is an educated lady and she has an experience of living alone at Pune for her education. Hence, the alleged contention of inability to travel alone for attending Court proceedings, is false. 6. The respondent also points out that, considering the chronology of the events, he has initiated the proceedings for restitution of conjugal rights before Civil Judge, Senior Division, Nanded in the month of June, 2008 which is 4 earlier in point of time whereas the proceedings for divorce initiated by the applicant before the Family Court, Aurangabad was initiated in October, 2008, which is later in point of time. Hence, it is the contention of the respondent that in view of Section 21-A(2)(a)(b) of Hindu Marriage Act, the petition for divorce filed by the applicant, which is later in point of time, is required to be transferred to Civil Judge, Senior Division, Nanded where the petition filed by the respondent husband for restitution of conjugal rights is pending, which is earlier in point of time and both the said petitions are required to be heard and decided in accordance with law before the Civil Judge, Senior Division, Nanded, and consequently, the present Misc. Civil Application filed by the petitioner wife is required to be dismissed. 7. Besides, the respondent submits that, even considering the convenience of parties, it would be convenient to conduct the petitions at Nanded since number of witnesses of the respondent are residing at Nanded. Moreover, the respondent states that he has filed an application before learned Family Court, Aurangabad under Section 10 of the Civil Procedure Code and same is pending before the said Court for consideration. He also points out that the applicant is avoiding the proceedings at Nanded whereas the proceedings at Aurangabad are hard pressed by her. 8. The respondent has filed additional affidavit and thereby brought subsequent events on record contending that the parents of the respondent are 5 old aged and father of the respondent suffered heart ailment and was admitted in I.C.U. for about 12 days and he has been advised bed rest. Moreover, he also states that his mother has undergone cataract operation and she also suffers visual impairment. The respondent submits that, he is the only caretaker of his old aged and impaired parents and, there is nobody to look after them and, therefore he cannot leave Nanded. He further states that his elder brother resides at Aurangabad and works as share-broker and, therefore, the responsibility of the parents is upon the respondent herein. The respondent annexed the documents and papers to support the aforesaid contentions of illness of his parents. 9. Besides, the respondent submits that, the distance between Sangamner and Nanded is about 350 Kms. And it is well connected by State Transport National Highway and railways. Hence, in view of the said position, respondent submits that the present Misc. Civil Application bears no substance and same is devoid of any merits and, therefore, it be rejected. 10. Heard learned counsel for the parties. At the outset, there is no dispute that the petition filed by the respondent/ husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, pending before Civil Judge, Senior Division, Nanded and Regular Civil Suit No.412/2008 filed by the respondent/ husband for injunction, pending before Civil Judge, Junior Division, Nanded, as well as the petition filed by the petitioner wife for divorce under 6 Section 13 of the Hindu Marriage Act, pending before Family Court, Aurangabad are required to be clubbed together to avoid the conflicting decision and to conform with the judicial propriety and discipline. In the said context, in fact Section 21-A(2)(a)(b) of the Hindu Marriage Act prescribes that the petition filed later in point of time be transferred to the District in which petition filed earlier in point of time is pending. However, as pointed out by the learned counsel for the petitioner and which is observed in paras 5 and 6 of the case reported at 2004(5) Bom.C.R. 901 (Nagpur Bench) (Yogini Umesh Chivhane Vs. Umesh Uttamrao Chivhane “(5)), the Hon’ble Supreme Court had an occasion to deal with Section 21-A of the Hindu Marriage Act in the case of Guda Vijaylakshmi Vs. Guda Ramchandra Sekhara Sastry, (A.I.R. 1981 S.C. 1143), wherein it is held that “The provisions of Section 21-A of the Hindu Marriage Act are not exhaustive and the Court can exercise and take resort to the provisions of Sections 23 to 25 of the Code of Civil Procedure for directing transfer of the petitions for consolidated hearing.” It was further held by the Apex Court that, “Where a wife filed petition for judicial separation under Section 10 of the Act and by the husband for restitution of conjugal rights under Section 9 in Courts in two different States, it will invariably be expedient to have a joint or consolidated hearing or trial of both the petitions by one 7 and the same Court in order to avoid conflicting decisions being rendered by two different Courts and in a situation resort will have to be had to the powers under Sections 23 to 25 of the Code of Civil Procedure for directing transfer of the petitions for a consolidate hearing.” “6. The aforesaid ratio can be made applicable to the facts and circumstances of the present case where the wife seeks transfer of the marriage petition filed by the husband for divorce at Wardha for trial along with the petition filed by her in the Court at Kelapur. It is obvious that in the matrimonial proceedings when the wife is living separately and taking shelter at her parents house she is placed in inconvenient position and circumstances and, therefore, it is desirable that the petition filed by the husband for divorce be transferred to a place where the petition has been filed by the wife seeking the relief of divorce.” 11. In the present case, although the petition filed by the petitioner wife at Family Court, Aurangabad is later in point of time and since Section 21-A of the Hindu Marriage Act is not exhaustive, resort is required to be taken to Sections 23 to 25 of the Code of Civil Procedure for directing the transfer of the petitions for consolidated hearing and while issuing such directions, undisputedly the petitioner wife is under the shelter of her parents’ house at Sangamner and she is placed in inconvenient position and, therefore, it is desirable that the 8 petition filed by husband which is pending before Civil Judge, Senior Division, Nanded for restitution of conjugal rights and Regular Civil Suit No.412/2008 filed by the respondent/ husband is pending before the Civil Judge, Junior Division, Nanded though in earlier point of time, are required to be transferred to Family Court, Aurangabad where the petition filed by the petitioner wife for divorce is pending, and all the said proceedings are required to be clubbed together and required to be decided in accordance with law before the said Court. 12. Moreover, in that scenario, I am told that the distance between Sangamner to Aurangabad is about 144 Kms. whereas the distance between Nanded to Aurangabad is about 260 Kms. Hence, the petitioner/ wife would be required to travel for about 144 Kms. from Sangamner to Aurangabad to attend the Court proceedings and the respondent/ husband would be required to travel for about 260 Kms. i.e. from Nanded to Aurangabad to attend the Court proceedings and, therefore, apparently, the Family Court, Aurangabad would be convenient central place to both the parties and which can very well be construed as a neutral place for both the parties and the apprehension of the petitioner/ wife in respect of alleged threats and man-handling at Nanded if she is compelled to attend the Court proceedings at Nanded, also can be aptly dealt with. In the said context, reliance can be very well placed on the observations made by the Apex Court in the case of Anju Vs. Pramod Kumar etc. (2005) 11 Supreme Court Cases 186), wherein the Hon’ble Supreme Court has held in para Nos.1 to 3 as under : 9 “1. These two counter transfer petitions have been filed one by the wife and the second by the husband. 2. Transfer Petition No.100 of 2003 has been filed by the wife for transfer of case being HMP No.560 of 2002 titled Pramod kumar v. Anju from the Family Court, Agra, U.P. to the Family Court, Nainital, Uttaranchal whereas Transfer Petition (Criminal) No.122 of 2004 has been filed by the husband for transfer of Case No.112 of 2002 titled as Anju v. Pramod Kumar from Family Court, Nainital (Uttaranchal) to the Family Court at Agra. 3. In our view, looking to the facts and circumstances of the case, it will be equitable if the aforesaid cases are tried at one place. As both the parties have expressed apprehension to go to the other place, it would be appropriate if the cases are tried at a neutral place. We, therefore, transfer the above mentioned cases to the District Judge at Bareily (U.P.) who shall assign them to an appropriate Court. With these directions, the transfer petitions stand disposed of. “ 13. Admittedly, the petitioner/ wife is residing at her parents’ house at Sangamner, District Ahmednagar and learned counsel for the petitioner made 10 submission that she has no source of income and she is at the mercy of her parents and it would be inconvenient for her to travel all the way from Sangamner to Nanded, which is about 400 Kms. to attend the Court proceedings at Nanded. However, in the said context, learned counsel for the respondent/ husband countered the said argument and submitted that the petitioner was residing at Pune for education and she has experience of traveling and she is habitual of traveling and, therefore, there is no substance in the said contention. To support the said contention of the petitioner, the learned counsel for the petitioner relied upon the case reported at (2000) 9 Supreme Court Cases 441 (Deepa Vs. Anil Panicker), wherein the Hon’ble Supreme Court held in para no.2 that : “The transfer petition is filed by the wife. It seeks the transfer of the petition for restitution of conjugal rights filed by the husband in the Court of the Judicial Commissioner, Ranchi to a competent Court in Trichur. The wife stays in Trichur. She avers that she is not employed and has no source of income. Her parents are not financially in a position to pay for her journeys to Ranchi to defend the suit. Apart from this, she cannot safely undertake a train journey for forty-eight hours or so alone or stay in Ranchi alone. These averments are not denied. It appears to us, therefore, appropriate to allow the transfer petition and transfer Matrimonial Suit No.60 of 1999 pending in the Court of the Judicial Commissioner, Ranchi to the 11 Matrimonial Court, Trichur. “ Learned counsel for the petitioner also relied upon a case reported at (2002) 10 Supreme Court Cases 81 (Varsha Paresh Shah Vs. Paresh H. Shah), wherein it was held ion para nos.1 and 3 as under : “1. The petitioner is the wife of the respondent. She is residing in Delhi whereas the respondent resides in Bombay. The respondent instituted HMA Petition No.A-1396 of 2001 for restitution of conjugal rights in the Family Court at Bandra, Mumbai. The petitioner says that she and her minor son of about 5 years are residing alone with her parents who cannot afford the expenses of travel from Delhi to Mumbai for prosecuting the said case. She and the minor child cannot travel alone, she being a young lady of about 28 years. In these circumstances, she prays that the said case be transferred from the Family Court, Bandra, Mumbai to the Court of the District Judge, Delhi. 2. . . . . . . 3. After hearing the learned counsel for the parties for quite some time, we are of the view that the ends of justice demand that the said case be transferred from the Family Court, Bandra, Mumbai to the District Court, Delhi. We, therefore, order that HMA Petition No.A-1396 of 2001, titled Paresh H. Shah v. Varsha Paresh Shah shall stand 12 transferred from the Family Court, Bandra, Mumbai to the District Court, Delhi. The learned District Judge may try the case himself or assign it to any Court having jurisdiction to try the same.” Learned counsel for the petitioner also relied upon the case reported at (2003) 11 Supreme Court Cases 726 (Rajwinder Kaur Vs. Balwinder Singh), wherein the Hon’ble Supreme Court held in para Nos.1 to 3 as under : “1. This is a transfer petition by the wife. She seeks the transfer of matrimonial proceedings filed by the husband before the District Judge, Barmer, Rajasthan to a Court in Chandigarh. It is the wife’s case that she cannot travel alone from Chandigarh, where she now stays, to Barner which is about 700 kilometres away. She cannot leave her four-year-old daughter, who is otherwise also unwell, during the time she would have to go to Barmer. She is also in financial difficulties because no maintenance is being paid to her. The only defence that is placed before us on behalf of the husband is that the transfer may be effected to a Court in Ambala because the husband is not stationed at Purulia. 2. Having regard to the averments made in the transfer petition, which are not really disputed, it is 13 appropriate to make the petition absolute. 3. Accordingly, the transfer petition is allowed. HMA No.68 of 2000 pending before the District Judge, Barmer, Rajasthan shall stand transferred to the Court of the District Judge, Chandigarh, who may hear it himself or assign it for hearing to an appropriate forum.” 14. In the said context, learned counsel for the respondent relied upon the case reported at (2006) 9 Supreme Court Cases 197 (Anindita Das Vs. Srijit Das), wherein the Hon’ble Supreme Court observed in paras 3 to 6 as under : “3. Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency shown by the Court. On a average at least 10 to 15 transfer petitions are on board of each court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. 4. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there 14 are grandparents available to look after the child. The respondent is willing to pay all expenses for travel and stay of the petitioner and her companion for every visit when the petitioner is required to attend the Court at Delhi. Thus, the ground that the petitioner has no source of income is adequately met. 5. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out. 6. Accordingly, we dismiss the transfer petition. We, however, direct that the respondent shall pay all travel and stay expenses of the petitioner and her companion for each and every occasion when she is required to attend the Court at Delhi.” Learned counsel for the respondent also relied upon the case reported at (2003) 11 Supreme court Cases 731 (Gayatri Mohapatra Vs. Ashit Kumar Panda), wherein the Supreme court observed in paras 2 to 4 as under: 15 “2. The transfer is sought on the ground that she is a lady belonging to the weaker section of the society and it will be difficult for her to travel to Meerut and attend the hearing of the case from time to time. There being no male member in the family and the parents being old and not keeping good health, they will not be able to accompany her. In the counter- affidavit filed by the respondent it is stated that the petitioner has personal houses in Delhi. She is a Director in a company run by her mother, which has its branch office in Delhi. She regularly visits Delhi for official and personal work. It is added, the petitioner travels throughout the country in connection with the company work and that she also travels most of the time with her father who has retired from the post of DGP, Orissa. 3. In the reply to the said counter the petitioner, inter alia, states that the petitioner has never traveled alone throughout the country in connection with the family business. 4. From the above allegations and counter- allegations, it is clear that the petitioner has traveled from one place to another and the ground that she will not be able to travel, cannot be a valid ground to seek transfer of the case. We, therefore, dismiss the transfer petition. No costs. ” 16 15. Considering the rival submissions and aforesaid observations made in the rulings cited by both the learned counsel for the petitioner and learned counsel for the respondent, even assuming for the sake of assumption without admitting that the petitioner has experience of traveling, the distance from Sangamner to Nanded is reportedly of about 400 Kms. which may consume about 9 to 10 hours to travel the same and it would not be apparently inconvenient for a female (petitioner) all the way to travel the said distance alone and the said visit which would certainly include night halt at Nanded and hence, it would be appropriate that she should not be compelled to travel all the way from Sangamner to Nanded, and, therefore, via media can be taken out from the same and hence, neutral and central place i.e. Aurangabad can be chosen to conduct all the proceedings pending between the parties to avoid causing injustice to either of the parties. 16. As regards the contention of the respondent in respect of illness of his parents and his inability to leave Nanded, leaving his old aged and impaired parents alone at Nanded, the respondent has stated that he is the only caretaker of his parents. However, in the additional affidavit, the respondent himself has blown hot and cold at the same time, wherein he also simultaneously stated that his elder brother resides at Aurangabad who works as a share-broker. Hence, it is apparently clear that respondent himself is not the only caretaker of his parents and his brother who is at Aurangabad, who is a businessman and works as a share-broker, also can shoulder the responsibility of looking after the old 17 aged and impaired parents and same cannot be construed as ground for the respondent to confine himself at Nanded and for not leaving Nanded to attend the Court proceedings at least at Aurangabad. 17. Coming to the rulings cited by the learned counsel for the petitioner as well as learned counsel for the respondent, considering the facts and circumstances in the present case and facts and circumstances in the case reported at (2005) 11 Supreme Court Cases 186 (Anju Vs. Pramod Kumar etc. (supra), are similar and as directed in the said case, the proceedings from Family Court, Agra and proceedings from Family Court, Nainital were almost similar, were transferred to neutral place i.e. Bareili (U.P.). Similarly, since the respondent resides at Nanded and filed proceedings before Nanded Court and since the petitioner herein resides at Sangamner and filed proceedings before Family Court, Aurangabad, the proceedings filed by the respondent/ husband before Nanded Court can be transferred to Aurangabad which is neutral place for both the parties. 18. Moreover, the observations made in the other ruling cited by learned counsel for the petitioner, reported at (2000) 9 Supreme Court Cases 441 (Deepa Vs. Anil Panicker) (supra), also apply to the instant case in hand considering the facts and circumstances of the said case and also the facts and circumstances in the present case. 18 19. So is