- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE MISC. CIVIL APPLICATION NO.91 OF 2008 Mrs Vijaya Subodh Parab .. Applicant vs Shri Subodh Shivling Parab ..Respondent .. Dr.Prakash K.Deshmukh for Applicant Ms.M.S.Paraanis for Respondent CORAM: R.V.MORE,J DATED: 12th June, 2009 P.C. Rule. 1. By consent, rule made returnable forthwith. Ms.Parasnis waives service for the respondent. 2. The above Misc.Civil Application is filed by the applicant-wife under section 24 of the Code of Civil Procedure, 1908 for transfer of Marriage Petition No.A-949/2008 filed by the respondent-husband in the Family Court, Bandra, Mumbai to the Court of the Civil Judge, Senior Division, Ponda. Goa. The brief facts giving rise to the present application are as follows : 3. The marriage between the applicant and the - 2 - respondent was solemnised at Mumbai on 8th February 2002. It is the case of the applicant that she has suffered cruelty and neglect from respondent as well as from her in-laws. The applicant alleged that on October, 2003 she was restrained from entering the matrimonial house and was compelled to take temporary shelter with her sister- in-law at Uran District Raigad. The applicant thereafter was compelled to return to Goa and live with her mother at Madkai-Tonk Ponda Goa. Out of this wedlock, the applicant gave birth to a son by name Ishan who is now four years old. The applicant along with her minor son is staying with her mother who is 72 years of age. The respondent filed proceedings being Marriage Petition No.A-949/2008 in the Family Court, Bandra, Mumbai under section 13 (1) (ia) (ib) of the Hindu Marriage Act, 1955 against the applicant for divorce. It is submitted by the applicant that her mother is old and her son is hardly four years old and studying in junior KG at a school in Panaji, Goa who is also suffering from bronchial problem. It is further submitted that since there is no source of income she has taken temporary job and in these circumstances it is very difficult to her to attend Family Court at Bandra, Mumbai which is about 600 kms away from the place where she resides. In the above circumstances, transfer application under section 24 of the Code of Civil Procedure, 1908 is filed by the applicant in this Hon’ble court. - 3 - 4. The respondent-husband by filing an affidavit in- reply denied the allegations of the applicant-wife. It is submitted that the applicant is in sound financial condition so as to manage and defend the proceedings in Family Court, Bandra, Mumbai. The respondent also submitted that he is doing farming work on contract basis and he has to supervise the labourers who are working under him and the agriculture crop constantly needs his attention. In these circumstances, it is impossible for him to attend the court proceedings at Ponda, Goa in case transfer of divorce case filed at Family Court, Bandra, Mumbai. The respondent lastly submitted that in the present case, section 25 of Code of Civil Procedure is applicable and therefore section 24 application is not maintainable in as much as the Court at Civil Judge, Senior Division, Ponda is situated in Goa which is a separate State. 5. Having heard learned counsel for the respective parties, I find merit in the application. The applicant is compelled to reside at her mother’s house in Madkai- Tonk, Goa along with her aged mother and minor son who is at present four years old. The distance between Mumbai and Goa is more than 600 kms. If the applicant is required to go to Mumbai to attend the proceedings filed by the respondent-husband in that event there is no - 4 - nobody to look after her minor son except the applicant’s mother who is also pretty old. The applicant will have to stay overnight in Mumbai,to attend the proceedings filed by the respondent at Family Court, Bandra, Mumbai. There being no earning member in the family, the applicant has taken temporary job in a company which is the only source of her income. In order to attend the Court proceedings in Family Court, Bandra, Mumbai the applicant has to take leave frequently which may result in losing her job. The applicant’s mother is suffering from osteo-arthritis and also has post operative cataract medical problems. The applicant’s son is also suffering from bronchial problems. The respondent on the contrary is a bachelor in Automobile Engineering and on his own showing, doing farming on contract basis. He is taking crops in the form of vegetables including chillis, tomatoes and flowers etc. 6. The Apex Court in Sumita Singh vs Kumar Sanjay & anr reported in AIR 2002 SUPREME COURT 396 held that convenience of the wife must be looked at. The Apex Court in Lalita A.Ranga vs Ajay Champalal Ranga reported in AIR 2000 SUPREME COURT 3406 (1) allowed the application by the wife for transfer of proceedings from Bombay to Jaipur on the ground that the wife is stationed at Jaipur having small child and it is difficult to contest the proceedings at Bombay from time to time. - 5 - 7. Taking into consideration the facts and circumstances mentioned herein above along with the decision of the apex Court, I am of the opinion that interest of justice will be served if the proceedings filed by the respondent=husband are transferred from Bombay to Goa. 8. Now I will consider the respondent’s objection regarding the maintainability of the application under section 24 of the Code of Civil Procedure, 1908. The respondent contended that Maharashtra and Goa being two separate States, section 25 of the Code of Civil Procedure has application and therefore, application under section 24 is not maintainable before this Court. Section 24 of the Code of Civil Procedure reads as under : “ 24. General power of transfer and withdrawal. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own m motion, without such notice, the High Court or the District Court may, at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and - 6 - (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same ; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. Where any suit or proceeding, has been transferred or withdrawn under sub-section (2) the Court which (is thereafter to try or dispose of such suit or proceedings may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. 1. (3) For the purposes of this section,- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court. (b) ‘proceeding’ includes a proceeding for the ` execution of a decree or order. 5. The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. 5. A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. 9. A plain reading of clause 1 (b) makes it clear that the High Court is empowered to withdraw any suit or proceeding pending in any court subordinate to it and transfer the same for trial or disposal to any court subordinate to it. Both the Family Court, Bandra Mumbai and the Court of the Civil Judge, Senior Division, at Ponda, Goa being subordinate to High Court, the applicant - 7 - rightly filed an application under section 24 of the Code of Civil Procedure, 1908 before this Court. In that view of the matter, I do not find any substance in the objection of the respondent-husband about maintainability of the application. In the facts and circumstances of the case, I dispose of the Misc. Civil Application by passing the following order : ORDER Rule is made absolute in terms of prayer clause (a). However, there shall be no order as to costs. The learned Civil Judge, Senior Division, Ponda, Goa however in the interest of justice on transfer of proceedings before it shall expedite the hearing of the same. R.V.More, J - 8 -