1 40 mca.101.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISCELLANEOUS CIVIL APPLICATION NO. 101 OF 2010 Mrs. Megha Mahesh Shelar. ... Appellant Versus Mahesh Vitthal Shelar. ... Respondent ----- Mrs. Megha Mahesh Shelar – Applicant, present in-person. Mr. Vishal Kanade for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 08 th April, 2011. P.C. 1 Perused the application dated 8 th April, 2011 submitted by the Applicant and no objection of the advocate for the Applicant recorded on Vakalatnama form. In view of the said no objection, the advocate for Applicant is discharged and the Applicant is permitted to argue this application in -person. 2 Heard the Applicant appearing in-person and the learned counsel appearing for the Respondent. 2 40 mca.101.10 3 The prayer in this application under Section 24 of the Code of Civil Procedure, 1908 made by the Applicant is for transfer of the Hindu Marriage Petition pending in the Court of Civil Judge (Senior Division) at Ahmednagar to the Court of the Civil Judge (Senior Division) at Pune. The ground pleaded in the application is that the Applicant is a resident of Pune and the Applicant is having custody of two minor children aged 5 and 4 years respectively. It is stated that both the children are taking education in a school at Pimpri, Pune. The case made out is that as distance between the Pune and Ahmednagar is 120 kilometers, it is not possible to the Applicant to regularly attend the Court at Ahmednagar. 4 The learned counsel appearing for the Respondent opposed the application. It is pointed out that the Applicant himself has filed an application under Section 125 of the Code of Criminal Procedure, 1973 in the Court of Ahmednagar. He pointed out that Hindu Marriage Petition No. 89 of 2009 was filed by the Applicant in the Court at Ahmednagar for restitution of conjugal rights and lastly, an application under Section 12 of 3 40 mca.101.10 the Domestic Violence Act has been filed by the Applicant in the Court at Ahmednagar. He pointed out that the Applicant is prosecuting the Respondent for the offence under Section 498-A of the Indian Penal Code in the Court at Ahmednagar and therefore, the grounds pleaded in the application deserve to be rejected. He submitted that the Respondent is a practicing doctor at Kolegaon, Taluka Shrigonda, District Ahmednagar and it is impossible for the Respondent to travel to Pune for attending to the petition. He submitted that not only his medical practice will suffer, but his old patients will suffer if the order of transfer is passed. He submitted that in any event, the Respondent is paying maintenance to the Applicant as well as the minor children and that the Respondent is ready and willing to pay travelling charges to the Applicant for the purposes of attending the Court at Ahmednagar. He submitted that no case is made out for transfer. He relied upon a decision of the Apex Court in the case of Anindita Das Vs. Srijit Das, (2006) 9 Supreme Court Cases 197. 5 I have given careful consideration to the submissions. It is 4 40 mca.101.10 not disputed that now the Applicant is a resident of Pune, and infact, in the Hindu Marriage Petition filed by the Respondent seeking divorce, the address of the Applicant mentioned is of Kasarwadi, Pune 6 It is true that the Applicant filed a petition for restitution of conjugal rights in the Court of Civil Judge (Senior Division) at Ahmednagar. Annexures to the application show that the Respondent raised an objection to the jurisdiction to the Ahmednagar Court to entertain the said petition. By order dated 29 th April, 2010, the learned Joint Civil Judge (Senior Division) Ahmednagar returned the petition for presentation to proper Court. In fact, the learned Judge fixed the date of appearance of the Applicant and the Respondent before the Court of Civil Judge (Senior Division) Pune as 9 th June, 2010. There is nothing on record to show that any of the parties has challenged the said order. 7 As far as application under Section 125 of the Code of Criminal Procedure, 1973 is concerned, the Appellant appearing in- person has tendered on record a copy of the order dated 18 th October, 5 40 mca.101.10 2010 passed by the learned Judicial Magistrate First Class. The said application has been rejected. One of the grounds on which the application is rejected is that the application was not maintainable in the Court at Ahmednagar. As far as proceedings under Section 12 of the Domestic Violence Act is concerned, the Applicant appearing in-person has tendered an affidavit filed by the Respondent in the said proceedings in which it was contended that the application was not maintainable in the Court of Chief Judicial Magistrate at Ahmednagar. The Applicant appearing in-person states that she does not want to prosecute the said application in the Court at Ahmednagar and she wants to institute the application in the appropriate Court at Pune. It is true that the criminal prosecution will remain pending in the Court at Ahmednagar. But, what is important is that even the Respondent has accepted the order of the Ahmednagar Court in a petition for restitution of conjugal rights filed by the Applicant by which the said petition was returned for presentation to the Court of Civil Judge (Senior Division) at Pune and infact, a date of appearance of the parties was fixed under the said order. Thus, the petition for restitution of conjugal rights will have to be now heard by the 6 40 mca.101.10 Court of Civil Judge (Senior Division) at Pune. Therefore, the Respondent will have to attend the said Court. In any event, it cannot be disputed that the petition for divorce filed by the Respondent and the petition for restitution of conjugal rights filed by the Applicant will have to be heard by one and the same Court. Apart from this, the decision of the Apex Court relied upon by the learned counsel appearing for the Respondent, appear to be delivered by the Apex Court in the facts of the case. In the present case, both the matrimonial petitions will have to be heard by the one and the same Court. 8 Hence, I pass the following order: i. The application is allowed in terms of prayer clause (a) ; ii. The learned Principal District Judge, Pune will issue necessary direction for ensuring that the petition filed by the Applicant for restitution of conjugal rights and the transfered petition are assigned to one and the same Court ; 7 40 mca.101.10 iii. The learned counsel appearing for the Respondent seeks stay of the operation of this order for a period of eight weeks. The said prayer for stay is rejected. [ A.S.OKA, J ]