1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD MISC. CIVIL APPLICATION NO.16 OF 2008 Dr. Sow. Sharda w/o Rajendra Thorat, Age 29 years, Occ. Medical Practitioner, R/o at present C/o Digambar Eknath Jadhav, Beside Kanya School, Adarsha Nagar, Garkheda, Aurangabad ... PETITIONER VERSUS Shri Rajendra s/o Sukhdeo Thorat, Age 32 years, Occ. Medical Practitioner, R/o Chitali, Taluka Pathardi, District Ahmednagar ... RESPONDENT ..... Mrs. V.S. Ghanekar, Advocate for the petitioner Shri C.K. Shinde, Advocate for the respondent ..... CORAM : S.P. DAVARE, J. DATED : 25th June, 2009. ORAL JUDGMENT: 1. Perused. Rule. Rule made returnable forthwith and taken up for final hearing by the consent of learned respective counsel for the petitioner and respondent. 2 2. The petitioner wife has preferred the present Misc. Civil Application, requesting to transfer the H.M. Petition No.160/2008 filed by the respondent/ husband before the Civil Judge, Senior Division, Ahmednagar to the Court of Principal Judge, Family Court, Aurangabad, to be decided in accordance with law. It is the contention of the petitioner that the marriage between her and the respondent was solemnized on 20.5.2003 at Paithan, District Aurangabad according to Hindu rites and customs. After the marriage, the petitioner and respondent resided and cohabited together at Chitali, Taluka Pathardi, District Ahmednagar. 3. However, due to incompatibility between the petitioner and respondent, the petitioner has been residing at her father's house at Aurangabad since 19.9.2007. Thereafter the respondent filed the petition for divorce under Section 13 of the Hindu Marriage Act before 3rd Joint Civil Judge, Senior Division, Ahmednagar bearing H.M. Petition No.160/2008 on 23.6.2008. The petitioner appeared in the said petition for divorce at Ahmednagar and filed written statement and the said petition is at the stage of recording the evidence before the learned Civil Judge, Senior Division, Ahmednagar. 4. On the face of the said position, it is the contention of the petitioner that out of the said wedlock between the petitioner and respondent, one daughter namely Arya has been born and she is minor, aged about 3 years and she is in custody of the petitioner herein. Hence, 3 the petitioner herein is looking after the upbringing of the said minor daughter. Therefore, it is the contention of the petitioner that it becomes very inconvenient for her to travel from Aurangabad to Ahmednagar to attend the Court proceedings at Ahmednagar, leaving alone the said minor daughter at Aurangabad since as per the contention of the petitioner, there is nobody to look after her as her mother is asthmatic patient and father is serving and her brothers are taking education. It is also contention of the petitioner that it also becomes very inconvenient for her to carry the minor daughter from Aurangabad to Ahmednagar to attend the Court proceedings since her daily routine gets disturbed. 5. It is also the contention of the petitioner that she is a medical practitioner and practicing at Aurangabad and, therefore, it becomes difficult for her to leave practice on dates of the Court and go to Ahmednagar to attend the Court proceedings. It is further contention of the petitioner that, there is no place to reside at Ahmednagar for her whenever she goes to Ahmednagar to attend the Court proceedings. 6. It is further contention of the petitioner that her witnesses belong to Aurangabad and it would be convenient for her to examine the witnesses at Aurangabad if the divorce petition filed by the husband at Ahmednagar is transferred to Family Court, Aurangabad. 7. The petitioner also submits that, the facility and assistance of Marriage Counselor is available at Family Court, Aurangabad which is 4 not available at the Court of Civil Judge, Senior Division, Ahmednagar and, therefore, it would be just and convenient to transfer the said divorce petition filed by husband pending before Civil Judge, Senior Division, Ahmednagar to Family Court, Aurangabad. 8. On the face of the said position, Shri C.K. Shinde, learned counsel appearing for the respondent countered the arguments canvassed by learned counsel for the petitioner and stated that the respondent is also a medical practitioner and practises at Ahmednagar and it is difficult and inconvenient for him also to travel all the way from Ahmednagar to Aurangabad to attend the Court proceedings if it is transferred to Family Court, Aurangabad and he would also suffer loss at his practice. 9. Learned counsel for the respondent also submitted that the parents of the petitioner are there to look after the minor daughter and minor daughter Arya cannot be the ground and cannot be used as a lever to transfer the petition filed by him to Family Court, Aurangabad. Learned counsel for the respondent further states that it is his petition which has been filed by him for divorce against the petitioner herein at Ahmednagar and both the parties resided and cohabited lastly at Ahmednagar and, therefore, Court of Civil Judge, Senior Division, Ahmednagar would be the proper forum to conduct the proceedings of divorce petition. 5 10. Learned counsel for the respondent further submitted that his witnesses belong to Ahmednagar and it would be inconvenient for him to bring the witnesses to Aurangabad if the proceeding is transferred to Aurangabad. 11. Considering the rival submissions, admittedly, the marriage between the petitioner and respondent took place at Paithan, District Aurangabad and both of them resided and cohabited together at Chitali, Taluka Pathardi, District Ahmednagar and both of them are blessed with a daughter namely Arya out of the said wedlock, who is in custody of the petitioner herein, who looks after her upbringing. Moreover, both the spouses are educated and are medical practitioners having their independent practice at the respective places at Aurangabad and Ahmednagar. 12. Keeping in mind the said aspects, it is material to note that the petitioner herein is in custody of minor daughter Arya, who is 3 years old and she is required to look after her upbringing and hence, if the petitioner is made to travel all the way from Aurangabad to Ahmednagar to attend the proceedings at Ahmednagar either leaving the minor daughter at Aurangabad or carrying her to Ahmednagar along with her, that would certainly cause inconvenience to the petitioner and consequently also would cause inconvenience to the said minor daughter Arya also. In the said context, the learned counsel for the petitioner relied upon the ruling reported at AIR 2002 SC 396, (Sumita Singh Vs. 6 Kumar Sanjay and another), wherein it is held that the convenience of the wife must be looked at and it is observed in paragraph Nos.2 and 3 of the said judgment as follows : “2. Learned counsel for the husband states that the wife is an educated woman who is doing very well and can, therefore, travel to Ara while the husband is unemployed. 3. It is the husband's suit against the wife. It is the wife's convenience that, therefore, must be looked at. The circumstances indicated above are sufficient to make the transfer petition absolute. ” 13. Learned counsel for the petitioner also placed reliance on the observations made in para Nos.10 to 13 in the case reported at 2003 (3) Mh.L.J. 139 (Anisha Sanjay Hinduja Vs. Sanjay Shrichand Hinduja), which read as under : “10. Reverting to the facts of the case, it is not in dispute that, as already observed above, the marriage was solemnized at Khar, Mumbai and the petitioner presently resides at Mumbai with her parents. She has delivered a child of about 5 months old. She is unemployed. There is nothing on record to disclose that she has any independent source of income either to maintain herself or her child. This observation is made only for the purposes of deciding the present case and shall not prejudice the parties in the proceedings filed by the petitioner claiming maintenance. 7 11. The objection on behalf of the respondent for transfer of his proceedings is mainly on the ground that the witnesses in support of his case for nullity of the marriage are from the District of Pune and therefore it will be inconvenient for the respondent to secure their presence in the Family Court at Bandra, Mumbai, to prove his case. Apparently, while the ground for transfer is inconvenience to and difficulties faced by the petitioner-wife, whereas the objection for transfer of proceedings is inconvenience to the respondent on account of difficulties which he may face in securing the presence of the witnesses. The presence of the witnesses can certainly be secured by incurring necessary expenditure for the same and if required by getting the summons issued by the Court. However, considering the convenience which the petitioner may suffer on account of her child of 5 months old which she has to look after and in the absence of any independent financial support to herself and her child, the said balance tilts in favour of the petitioner. 12. Besides the observations in the Apex Court's decision in the case of Sumita Singh (supra) that in a case filed by the husband, convenience of the wife is to be considered certainly comes in favour of the petitioner coupled with the provisions of Section 19 of the said Act which gives jurisdiction to Family Court at Bandra, Mumbai to entertain the proceedings which are initiated by the respondent in the Family Court at Pune. 13. Taking into consideration the facts and circumstances of the case, evidently the petitioner has made out a case for transfer of the proceedings from the Family Court, Pune, to Family Court at Bandra, Mumbai and hence the petition deserves to be allowed in terms of prayer clause (a) as far as it relates to transfer of the proceedings. The issue regarding hearing 8 of the petition being P.A. No.85 of 2001 along with M.J. Petition No.C-91 of 2002, however, is left open to be considered by the concerned Court after hearing the parties.” 14. Considering the ratios laid down in both the said rulings, wherein it is reiterated that the convenience of the wife is required to be seen while considering the transfer of matrimonial proceedings and apparently the said aspect is in favour of the petitioner herein. 15. Besides, another vital aspect cannot be overlooked that the facility and assistance of Marriage Counselors which is available at Family Court, Aurangabad and which is not available before the Civil Judge, Senior Division, Ahmednagar. Hence, if the divorce petition filed by the respondent herein, which is pending before Civil Judge, Senior Division, Ahmednagar is transferred to Family Court, Aurangabad, the facility and assistance of Marriage Counselors would be available to both the parties to explore the possibility of settlement between them. Hence, the said aspect also goes in favour of the petitioner herein. 16. As regards the other rival contentions of both the parties which carry equal weightage on both the sides, since petitioner has got her witnesses at Aurangabad and so is the position with the respondent, who has got his witnesses at Ahmednagar, as well as the practice of petitioner at Aurangabad would be affected if she attends the Court at 9 Ahmednagar and so is the position with the practice of respondent since his practice at Ahmednagar also would be affected if he is required to attend the Court proceedings at Aurangabad provided the proceedings are transferred to Family Court, Aurangabad and, therefore, the said contention need not carry any consideration. 17. In the circumstances, it would be just and convenient to transfer H.M.Petition No.160/2008 filed by the respondent/ husband which is pending before learned 3rd Joint Civil Judge, Senior Division, Ahmednagar, to the Principal Judge, Family Court, Aurangabad in the interest of justice with request to decide the said petition as expeditiously as possible, but parties also to co-operate with the Court in hearing of the said matter. 18. In the result, present Misc. Civil Application succeeds and it is allowed in terms of prayer clause (B) thereof and it is directed that H.M. Petition No.160/2008, filed by the respondent/ husband, which is pending before 3rd Joint Civil Judge, Senior Division, Ahmednagar, be transferred to Principal Judge, Family Court, Aurangabad, to be decided in accordance with law. Learned Principal Judge, Family Court, Aurangabad is requested to decide the said petition as expeditiously as possible. Parties to cooperate to the Court and not to seek adjournments without reasonable ground. Rule made absolute in above terms. In the facts and circumstances, there shall be no order as to costs. (S.P. DAVARE, J.)