Case Transfer on wife’s Petition by High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, NAGPUR
                                                            
                MISC. CIVIL APPLICATION NO.1097 OF 2014

    Mukta alias Lata w/o Sachin Chide,                                                           
    Aged about 29 years,
    Occupation Service,
    Resident of C/o Medical Superintendent,
    Mental Hospital, Sub-District Hospital,                                              
    Nelson Square, Nagpur.                                       ..... Applicant.
                             ig     ::   VERSUS   ::

    Sachin s/o Kamlakar Chide,
                           
    Aged about 29 years,
    Occupation Service,
    Resident of Hanuman Ward,
    Post & Tahsil Hinganghat,
    District Wardha.                                               ..... Non-applicant.
   
   ================================================================
                  Shri A. Shelat, counsel for the Applicant/Wife
              Shri P.P. Kotwal, counsel for the Non-applicant/Husband.
    ================================================================
                               CORAM : A. P. BHANGALE, J.  

DATE : JUNE 17, 2015 ORAL JUDGMENT .

1. Rule. Rule is made returnable forthwith. Heard the matter by consent of the learned counsel for the parties.

2. The applicant / wife has filed this application for transfer of H.M.P. No.376 of 2013 from Wardha to the Family Court at Nagpur. According to her, the petition for decree of divorce filed by the non-applicant / husband is pending in the Court of Learned Civil Judge Senior Division at Wardha.

3. Though efforts were made earlier to settle the matter between the parties amicably, mediation failed.

4. Learned counsel for the applicant / wife submits that the wife is working as a Nurse in the Mental Hospital at Nagpur.

The marriage between the parties was solemnized as per hindu customs and rites. The applicant started living with the non-

applicant at her matrimonial house at Hinganghat, District Wardha. She gave birth to a child out of their wedlock on 15.8.2012 for which she had to undergo an operation. When the dispute arose between them, she started living at Nagpur.

Learned counsel further submits that the non-applicant / husband has filed petition in the Court of learned Civil Judge Senior Division at Wardha for decree of divorce. Since the applicant / wife underwent operation and has to look after her minor child, learned counsel for the applicant / wife prays for transfer of the proceedings from Wardha to the Family Court at Nagpur. Learned counsel submits that the non-applicant / husband can conveniently attend the proceedings for decree of divorce and the proceedings at Nagpur can be heard on merits, if the same are directed to be transferred at Nagpur.

5. Learned counsel for the non-applicant / husband strongly opposes the application for transfer of the proceedings from Wardha to the Family Court at Nagpur based on mere convenience of wife ought not be the ground for transfer. He submits that alternatively, if the proceedings are directed to be transferred, the non-applicant / husband may be allowed to the attend the proceedings on his weekly-off day i.e. Wednesday.

6. In support of the application, learned counsel for the applicant / wife has placed reliance in the case of Sumita Singh ..vs.. Kumar Sanjay and another, reported at AIR 2002 SC 396. The Honourable Supreme Court had transferred matrimonial case from the learned VIth Additional District and Sessions Judge, Ara, Bhojpur, Bihar to the learned District Judge, Delhi on the ground that wife would be unable to travel up and down from Delhi to Ara, which is distance of about 1100 Kilometers. The Apex court held that it is the wife’s convenience that must be looked at when the husband has filed the petition against the wife. The principle was also followed by this Court in the case of Mrs. Anisha Sanjay Hinduja ..vs.. Sanjay Shrichand Hinduja, reported at 2003 AI HC 1883 (BC). This Court after considering the ruling in the case of Sumita Singh’s case cited supra followed that in a husband’s suit against the wife, it is the wife’s convenience that must be looked at, and the circumstances which were peculiar to that case were sufficient to order transfer of the petition from one Court to another.

7. I have heard the submissions of the rival parties. I find that the wife has to attend the proceedings at Wardha which is about 60 Kilometers away from Nagpur. When the Family Court exits at Nagpur, it would be convenient to the applicant / wife to oppose the same on merits at Nagpur rather than at Wardha.

Moreover, applicant / wife has to look after her minor child who is two years of age. Under these circumstances, the prayer made by learned counsel for the applicant / wife for transferring of the proceeding, filed by the non-applicant / husband for decree of divorce from Wardha to the Family Court at Nagpur, appears to be just and reasonable.

8. Taking into consideration the facts and circumstances of the case, the applicant / wife has made out a case for transfer of the proceedings from Wardha to the Family Court at Nagpur and hence, the application deserves to be allowed in terms of its prayer clause.

In the result, this Court passes the following order :

ORDER

1) Misc. Civil Application No.1097 of 2014 is allowed.

2) The proceedings bearing H.M.P. No.376 of 2013 pending before the learned Civil Judge Senior Division at Wardha stand transferred to the Family Court at Nagpur.

3) The family Court at Nagpur shall try to expedite the hearing in the petition filed by the non-applicant / husband and dispose of the same as early as possible.

However, since the non-applicant / husband finds it difficult to attend the proceedings on the days which would be fixed by the trial Court, the trial Court shall consider his convenience to enable him to attend the Court.

Rule is made absolute in aforesaid terms. There shall be no order as to costs.

JUDGE !

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