1 mca73.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Misc. Civil Application No. 73 of 2011 Mrs. Kavita Shantabha Zalla ...Petitioner V/S. Mr. Shantabha Ajubha Zalla ...Respondent Mr. Devendranath S. Joshi for the petitioner. Ms. Purnima G. Bhatia for the respondent. CORAM: R.M. BORDE, J. 21st September, 2011 PC: This is a petition by the petitioner wife for transfer of proceeding of Hindu Marriage Petition bearing No. 582/2010 presented in the Court of Civil Judge, Senior Division, Kalyan to the Court of Civil Judge, Senior Division, Rajkot, Gujarat. The parties are admittedly related to each other as husband and wife. The marriage was solemnized on 25th April, 2008 at Godhra, Gujarat. It is not disputed that the petitioner is residing in the State of Gujarat at the address mentioned by the petitioner at Rajkot. The petitioner is housewife and is not earning anything and is fully dependent upon her parents for her livelihood. Due to some matrimonial discord the relations between the parties were strain and husband has presented the petition under Section 13(1)(ia) of the Hindu Marriage Act, 1956 seeking divorce against the petitioner in the Court of Civil Judge, Senior Division, Kalyan being Hindu Marriage Petition No. 582/2010. The petitioner is seeking transfer of the Hindu Marriage Petition presented in the Court at Kalyan to the Court of Civil Judge, Senior Division, Rajkot. It is the contention of the petitioner that she being a lady and unemployed is not in a position to prosecute the application presented in 2 mca73.11.sxw different State. 2. The Counsel appearing for respondent has seriously controverted the contentions of the petitioner contending that no case is made out for transfer of Hindu Marriage Petition to the Court at Rajkot. It is contended that wife is getting maintenance and she can afford to come down at Kalyan and prosecute the litigation presented here. It is also contended that the petition presented to this Court seeking transfer of matter is not maintainable and in view of Section 25 of the Code of Civil Procedure, the petition shall have to be presented to the Supreme Court of India. Section 23 sub-section 3 reads thus:- “23(3) Where such courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought in situate.” 3. The petitioner is seeking transfer of matter from one Court to another which can be presented to the High Court within local limits of whose jurisdiction the said Court is situated wherein the suit proceedings which is sought to be transferred is instituted. Reliance is placed on the Judgment in the matter of Sau. Sangeeta Bajirao Suryawanshi v/s. Bajirao Bhimrao Suryawanshi (1995 iLaw (Bom) 424). In para 8 of the Judgment it has been observed by the Court as below: “ At the outset, it may be stated that sub-section (3) as reproduced above, requires no interpretation. 4 It’s plain language shows that the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate. In other words, it is clear from the provision of sub-section (3) of section 23 that the application is required to be made to the High Court within local limits of whose jurisdiction the subordinate Court is situate in which the suit is sought to be transferred in instituted. The view is clearly supported by two of the decisions in 3 mca73.11.sxw cases of (Jagatguru Shri Shankaracharya v. Ramji Tripathi)1, A.I.R. 1979 M.P. 50 an d (Smt. Sunita Bali V. Ashok Bali)2, A.I.R. 2987 Raj.79. In Jagatguru Shri Shankaracharya’s case it has been observed: Where a suit is sought to be transferred to a Court subordinate to another High Court, the application for transfer has to be made in the High Court within whose jurisdiction the suit is pending.” 4. In view of the law laid down by this Court in the judgment cited supra the petition presented by the petitioner seeking transfer of matter instituted in the Court of Kalyan is entertainable. 5. Insofar as merits of the grounds stated in the petition is concerned, it is not disputed that the petitioner is a lady and is unemployed and does not earn anything for her livelihood. Petitioner is depending upon her father and brother with whom she had sought shelter. The petitoner wife, therefore, cannot be compelled to prosecute the litigation instituted in a different state at the place where husband resides. The husband has source available for earning livelihood and can conveniently prosecute litigation if transferred to the Court at Rajkot. The petition tendered by the petitioner, therefore, deserves to be allowed and same is accordingly allowed. The proceedings in Marriage Petition No. 482/2010 presented to the Court of Civil Judge, Senior Division, Kalyan be transferred to the Court of Civil Judge, Senior Division, Rajkot, Gujarat for hearing and final disposal. 6. Rule is accordingly made absolute. In the facts and circumstances of the case there shall be no order as to costs. (R.M.BORDE, J)