{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD MISCELLANEOUS CIVIL APPLICATION NO.37 OF 2009 Sandhya w/o Ananta Mane Age-25 years, Occ-Nil R/o c/o D.B.Kawre, Opp-Church, Bhushan Nagar, Kedgaon, Ahmednagar APPLICANT VERSUS Ananta s/o Manohar Mane Age-29 years, Occ-Service R/o Flat No.602, Near Chinchpokli Station Chintamani Cooperative Housing Society, Sane Guruju Marg, Lalbag, Mumbai RESPONDENT ....... Mr. A.S.Zarekar, Advocate for the applicant Mr. U.K.Patil, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 20th April 2010 ORAL JUDGMENT: 1. By this Miscellaneous Civil Application, the applicant has prayed for transfer of HMP No.A1757/2009 from the file of Family Court, Bandra, Mumbai to the Court of Civil Judge Senior Division, Ahmednagar. {2} 2. Considering the fact that a very small point is involved in the present miscellaneous application, the application is heard finally at the stage of admission, with the consent of the learned counsel for the parties. 3. Rule. Rule made returnable forthwith. 4. Before I proceed to consider the merits of the matter, it is necessary to take note of certain facts, which gave rise to file the present MCA, which are enumerated as follows:- Admittedly, marriage of applicant with respondent was performed on 28.04.2008 at Sangamner, Dist-Ahmednagar. Thereafter, the spouses resided at Bombay till 13.08.2008, however, due to certain matrimonial dispute, they, thereafter, started residing separately. Present respondent filed a petition under section 13 (1) (ia) r/w section 10 of the Hindu Marriage Act seeking decree of divorce in the alternate for judicial separation. The applicant resides at Ahmednagar. The present applicant has also filed an application under the Domestic Violence Act on 28.08.2009 before the Chief Judicial Magistrate, Ahmednagar. The applicant has also filed HMP No.311/2009 u/s 9 of the Hindu Marriage Act. The applicant has filed application for interim alimony in both the Hindu Marriage petitions. The quantum of the said interim alimony is disputed and hence challenged before the higher authorities. Admittedly, though the application for interim {3} alimony is field, yet the applicant is not receiving the same. 5. In this background, the applicant has prayed for transfer of the HMP No.A1757/2009 from the file of Family Court, Bandra, Mumbai to the Court of Civil Judge Senior Division, Ahmednagar, as she resides at Ahmednagar and due to financial crises she is unable to attend the Court at Bombay. 6. On notice of the present MCA, the respondent appeared and filed affidavit in reply. It is contended by the respondent that he is jobless and unable to bear the expenses of traveling from Bombay to Ahmednagar to attend the court proceedings. It is also contended that the Hindu Marriage Petition for judicial separation and for divorce filed by him is first in time and only to give counter blast to the said petition, the applicant has filed various proceedings. Respondent has urged that considering the weak financial condition, the Miscellaneous Civil Application be dismissed. 7. Considering the rival submissions and considering the provisions of section 19 of the Hindu Marriage Act, the Marriage Petition can be filed in the court within whose jurisdiction the marriage is performed or in the court within whose jurisdiction both the spouses resided lastly. Admittedly, marriage of applicant and respondent was performed at Sangamner, Dist-Ahmednagar. It is also not disputed that after their marriage, applicant and {4} respondent resided at Bombay, however due to certain matrimonial disputes, they started residing separately. Considering the admitted facts, the Court at Ahmednagar so also the Court at Bombay, both have jurisdiction to try and entertain the marriage petitions filed by the parties. 8. The Apex Court, so also this Court, in catena of judgments, has held that if transfer petition is filed then convenience of the wife requires to be considered. 9. The Apex Court, in the matter of “Rajani Kishor Pardeshi V/s Kishor Babulal Pardeshi” reported in (2005) 12 SCC 237, has held that the husband opposes the transfer on the ground that it is equally inconvenient for him to go to Satana and that he is willing to pay the expenses for wife’s travel to Mumbai. In this type of matter, the convenience of the wife is to be preferred over the convenience of the husband. 10. This Court, in the matter of Anisha Sanjay Hinduja V/s Sanjay Shrichand Hinduja, reported in 2003 (3) Mh.L.J. 139 has held that, “The Apex Court in the matter of “Sumita Singh V/s Kumar Sanjay, reported in AIR 2002 SC 396, has held that in case husband files petition then it is the wife’s convenience that must be looked into and the circumstances which are peculiar to the case, were sufficient to transfer the case from one court to another. The said transfer was sought for by the wife. {5} 11. Thus, from the observations of the above referred judgment, it is clear that in case of matrimonial dispute the convenience of wife over the convenience of husband should be preferred. In the case in hand, it is pleaded by applicant wife that she is in precarious financial position and cannot attend the Court at Bombay where the marriage petition is filed by the husband respondent. Respondent husband has come with a case that as he is jobless, he cannot bear the expenses of traveling from Bombay to Ahmednagar to attend the court proceedings. Thus, it is clear that both applicant-wife and respondent-husband are sailing in the same boat in respect of financial position. In the premise, the financial crises of wife to be preferred over that of the husband’s. Therefore, though the petition filed by respondent-husband is earlier in point of time, yet considering the financial and other conditions of the applicant- wife, she deserve some relief. In view of this situation, the present MCA ought to succeed. 12. In the result, the Miscellaneous Civil Application is allowed. The HMP No.A1757/2009 pending on the file of Family Court, Bandra, Bombay is hereby transferred to the file of Civil Judge, Senior Division, Ahmednagar. Registry to sent copy of this order to the Registrar, Family Court, Bandra, Mumbai intimating him to take necessary steps to send the Record and Proceedings of HMP No.A1757/2009 to the Court of Civil Judge, Senior Division, Ahmednagar, forthwith. {6} 13. It is hereby directed to the Civil Judge Senior Division, Ahmednagar that after receipt of the Record and Proceedings of HMP No.A1757/2009 from the Family Court, Bandra, Bombay, to issue notice to the parties and then to dispose of the same in accordance with law. Civil Judge Senior Division, Ahmednagar is further directed to hear the petition filed by the applicant wife against respondent – husband along with HMP No.A1757//2009. 14. Rule is thus, made absolute on the terms indicated above. The Miscellaneous Civil Application is disposed of, however, considering the peculiar facts and circumstances of the case, with no order as to the costs. [A.V.POTDAR, J.] drp/B10/mca37-09