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2012 DIGILAW 1446 (BOM)

Sandhya Rajaram Lokhande v. Rajaram Ganu Lokhande

2012-08-02

S.S.SHINDE

body2012
Judgment : 1. Rule. Rule is made returnable forthwith. By consent of the parties, heard finally. 2. This Misc. Civil Application has been filed praying therein for transfer of the proceedings No.A-444 of 2011 pending on the file of Family Court, Aurangabad to the Court of Civil Judge, Sr. Division, Jalgaon. 3. The background facts for filing this application, as disclosed by the applicant, are as under: It is the case of the applicant that the applicant got married with the respondent on 22nd November, 1991. Out of the wedlock, the couple is blessed with two sons namely, Adinath age 21 years, and Vaibhav, aged 11 years. The applicant and respondent were residing at Aurangabad. The respondent is a lecturer by profession and working in a reputed College at Aurangabad. It is the contention of the applicant that the respondent is having habit of drinking etc. He used to taunt the applicant on small things. He also used to beat and torture her. The respondent many a times did not allow the applicant to perform Pooja and offer the prayers etc. Once, he had thrown the idols of the Gods, while the applicant was offering prayer. On such, count, the respondent always used to ill-treat the applicant. The applicant was constrained to approach Dakshata Samiti at Jalgaon. There, the respondent was called two -three times. The respondent assured before Dakshata Samiti that he will treat the applicant properly. It is further contention of the applicant that the respondent also used to demand `1,00,000/-from the father of the applicant. The applicant was constrained to leave the matrimonial house and she went to Jalgaon and presently she is staying with her old age father. On 6th February, 2012, the applicant was constrained to file petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights bearing H.M.P. No.99 of 2012 in the Court of C.J.S.D., Jalgaon. It is further case of the applicant that the respondent neither takes care of the applicant nor made provision for her maintenance. Therefore, the applicant was constrained to file Misc. Criminal Application No.112 of 2012 for maintenance under Section 125 of Cr.P.C., which is also pending before the Court of J.M.F.C ., Jalgaon. The applicant has also filed an application for custody of younger son. Therefore, the applicant was constrained to file Misc. Criminal Application No.112 of 2012 for maintenance under Section 125 of Cr.P.C., which is also pending before the Court of J.M.F.C ., Jalgaon. The applicant has also filed an application for custody of younger son. It is the case of the applicant that the respondent falsely sent a notice on 18th October, 2011 making various allegations against the applicant stating that if the applicant does not come for cohabitation, the said notice be treated as divorce. The said notice was replied by the applicant through her advocate. However, in spite of such reply, the respondent did not turn up to fetch the applicant. 4. It is the case of the applicant that she was shocked and surprised after receipt of the notice on 27th March, 2012 from the Family Court, Aurangabad. The applicant appeared before the Family Court on 28th March, 2012. The matter was referred for counseling to the Councilors. The Councilor had given date on 13th April, 2012 and 9th May, 2012. On both the occasions, she remained present before the Councilor however, from the attitude of the respondent it is clear that he is not willing at all for amicable settlement and to take back the applicant for cohabitation. It is the case of the applicant that it is difficult for her to travel from Warangaon to Aurangabad. She is now residing with her old parents, who could not give her company on every time to Aurangabad. So also there is no one in the family to accompany her. There is no direct public transport facility to reach Aurangabad from Warangaon. She cannot travel on her own on each and every date to Aurangabad. It is submitted that this Misc. Civil Application may be allowed and the proceedings pending before the Family Court, Aurangabad be transferred to the C.J.S.D., Jalgaon where three proceedings filed by the applicant are already pending. 5. On the other hand, the learned Counsel for the respondent / husband invited my attention to the averments in the affidavit-in-reply and submitted that the respondent has never ill-treated the applicant. There is no any threat to the applicant, she can travel to Aurangabad, transport facilities are available from Warangaon to Aurangabad. 5. On the other hand, the learned Counsel for the respondent / husband invited my attention to the averments in the affidavit-in-reply and submitted that the respondent has never ill-treated the applicant. There is no any threat to the applicant, she can travel to Aurangabad, transport facilities are available from Warangaon to Aurangabad. It is further submitted that the respondent is suffering from back pain problem, there are two sons who are studying with the respondent and he has to look after them and their education. It is submitted that the proceedings instituted by the respondent are first in time and the proceedings filed by the applicant deserves to be transferred at Aurangabad instead of entertaining the prayer of the applicant to transfer the proceedings pending before Family Court, Aurangabad to competent Court at Jalgaon. Therefore, relying upon the averments in the affidavit-in-reply, the learned Counsel for the respondent would submit that this application is devoid of any merits and it may be rejected. 6. Upon appreciating the rival contentions and perusal of the grounds taken in the Misc. Civil Application, annexures thereto and the affidavit-in-reply filed by the respondent, this Court is of the opinion that it is the convenience of the wife which is required to be looked into in the proceedings filed by the husband. The statement is made in the application that there is no direct transport facility from Warangaon to Aurangabad, the distance between the said places is roughly 175 Kms., nobody is there to accompany the applicant during the travel. Apart from the above, there are only old age parents with whom she is staying. The applicant is to look after them. Other grounds are also taken in the application. The Supreme Court in case of Sumita Singh vs. Kumar Sanjay [2001(10) SCC 41] held that, in the proceedings filed by the husband, it is the convenience of the wife that should be looked into. Therefore, taking over all view of the matter, in the facts of this case, it would be appropriate and in the interest of justice that the proceedings which are pending before the Family Court, Aurangabad instituted by the respondent are transferred to the competent Court at Jalgaon. Therefore, taking over all view of the matter, in the facts of this case, it would be appropriate and in the interest of justice that the proceedings which are pending before the Family Court, Aurangabad instituted by the respondent are transferred to the competent Court at Jalgaon. It is relevant to mention that the allegations in the application of the applicant against the husband are serious in nature and also further allegation that the properties which were standing in the name of the respondent are transferred in the name of some other lady is also a serious matter. However, this Court refrain from making any comments on this aspect since that would be a separate aspect for adjudication. However, in the facts of this case, ends of justice would meet if the application is allowed in terms of prayer clause (B). 7. Accordingly, this application is allowed in terms of prayer clause (B). The proceedings No.A-444 of 2011 pending on the file of Family Court, Aurangabad are transferred to the Court of Civil Judge, Sr. Division, Jalgaon. The Family Court, Aurangabad to instruct the office to send all the relevant files and papers to the Court of C.J.S.D., Jalgaon within one week from receipt of the order of this Court. Rule is made absolute, accordingly. Misc. Civil Application stands disposed of.