Sheetal Mahendra Devrukhkar v. Mahendra Kashiram Devrukhkar
2016-02-17
R.D.DHANUKA
body2016
DigiLaw.ai
JUDGMENT : 1. By this miscellaneous civil application filed under section 24 of the Code of Civil Procedure, 1908, the applicant wife seeks transfer of Hindu Marriage Petition No.A/80 of 2013 pending in the 3rd Family Court at Bandra to the Family Court at Nashik at Nashik Road. 2. The applicant was married to the respondent on 6th March, 2006 at Bhoiwada, Mumbai. It is the case of the applicant that in view of the ill-treatment given to the applicant by her husband and in-laws, the applicant started residing with her parents at Nashik. A male child is born out of the said wedlock between the applicant and the respondent. 3. It is the case of the applicant that the respondent has been working in a private company and earing a salary of approximately Rs.50,000/- per month and is also earning Rs.5.00 lacs per year from the agricultural land. The applicant is working as a Bus Conductor and is earning a meager salary. The parents of the applicant are retired. The applicant is not able to attend the proceedings at Mumbai along with her parents. Her son is five years old and has been studying in a school at Nashik. 4. Learned counsel appearing for the applicant invited my attention to the judgment of the Supreme Court in case of T. Gayatri Devi vs. Dr. Tallepaneni Sreekanath, 2013(6) Bom.C.R. 119 and in particular paragraphs 4 and 5 and would submit that the respondent husband, who has filed divorce proceedings against the applicant in the Family Court, Bandra cannot force the applicant wife to attend the said proceedings at the place convenient to the husband and cannot expect the applicant to travel from Nashik to Mumbai. Paragraphs 4 and 5 of the judgment of the Supreme Court read as under :- “4. We find the approach of the High Court and the reasons assigned clearly unsustainable as the High Court appears to have lost sight of the fact that the respondent-husband on the one hand has filed a divorce proceeding against the appellant-wife and further expects the same to be tried at a place of his choice, which is Hyderabad. The High Court refused to transfer it to the place where the wife is working on the ground that the petitioner-wife is not an indigent lady and she is capable of contesting the suit by undertaking journey from Kakinada to Hyderabad.
The High Court refused to transfer it to the place where the wife is working on the ground that the petitioner-wife is not an indigent lady and she is capable of contesting the suit by undertaking journey from Kakinada to Hyderabad. The learned Single Judge has completely overlooked the implication of this view as on the one hand the appellant-wife would be expected to contest the divorce proceeding to her detriment and at the same time would have to undertake the journey from Kakinada to Hyderabad which is bound to affect discharge of her professional duties where she is working as apart from the journey she would also have to seek leave which surely would affect her performance in the company further and put her job at risk. The import of the order clearly is that on the one hand the appellant-wife should live alone, maintain herself by living at her parents place and on the top of it give more attention to contest the divorce proceeding rather than looking to her job on which she is surviving in absence of any support from her husband who not only seeks a decree of divorce but also at convenience by choosing a place of his choice to secure a decree of divorce. 5. Considering the implication of the aforesaid situation and circumstance, the view taken by the High Court refusing to transfer the case is fit to be struck down as illegal, devoid of practical fallout and wisdom.” 5. Learned counsel for the respondent on the other hand submits that the applicant is working as a Bus Conductor and is travelling between Nashik and Dhule and thus the applicant can attend the proceedings in Mumbai also. She submits that merely because the applicant being a woman she cannot take advantage of her gender and cannot apply for transfer of the proceedings purely on that ground. 6. The respondent does not deny that her client is earning income of Rs.50,000/- per month as salary as well as earning Rs.5.00 lacs per year from the agricultural land. On the contrary, the applicant is maintaining her five years old son and is staying with her parents in Nashik. The respondent does not dispute that the applicant is also working as a Bus Conductor. The applicant is not able to get any leave from her employer. 7.
On the contrary, the applicant is maintaining her five years old son and is staying with her parents in Nashik. The respondent does not dispute that the applicant is also working as a Bus Conductor. The applicant is not able to get any leave from her employer. 7. The Supreme Court in case of T. Gayatri Devi vs. Dr. Tallepaneni Sreekanath (supra) has held that the respondent husband, who has filed divorce proceedings against the wife cannot except that the proceedings to be tried at the place of his choice. The Supreme Court reversed the judgment of the High Court by which the High Court had refused to transfer the proceedings to the place where the wife was residing on the ground that the petitioner wife was not an indigent lady and was capable of contesting the suit by undertaking the journey from her place of residence to the place where the proceedings were pending. The Supreme Court took a view that the learned single Judge of the High Court had completely over looked the implication of this view as on the other hand the applicant wife would be expected to contest the divorce proceedings to her detriment and at the same time would have to undertake the journey from her place of residence to the place where the proceedings are filed. In my view, the principles laid down by the Supreme Court in the case of T. Gayatri Devi vs. Dr. Tallepaneni Sreekanath (supra) are clearly applicable to the facts of this case. 8. In view of the fact that the applicant is also working as a Bus Conductor and her five years old is also staying with her, whose care is required to be taken by the applicant-mother and in view of the fact that the respondent is earning sufficient amount and is staying at Bhivandi, in my view he can travel from Bhivandi to Family Court at Nashik. It is held by the Supreme Court in catena of decisions that while deciding the application filed under section 24 of the Code of Civil Procedure, 1908, convenience of the wife has to be considered by the Court. The principles laid down by the Supreme Court are binding on this Court. I am respectfully bound by the judgment of the Supreme Court. 9.
The principles laid down by the Supreme Court are binding on this Court. I am respectfully bound by the judgment of the Supreme Court. 9. Insofar as the submission of learned counsel for the respondent that the applicant is also working and thus she can travel from Nashik to Mumbai is concerned, there is no substance in this submission made by the respondent. The applicant is not able to take leave from her employer. The next submission of learned counsel for the respondent is that merely because she is a woman that cannot be a criteria for transferring the proceedings from Mumbai to Nashik is concerned, this submission of learned counsel for the respondent is contrary to the principles laid down by the Supreme Court that the Court while considering an application under section 24 of the Code of Civil Procedure, 1908, the convenience of the wife has to be considered. Both the objections of the learned counsel for the respondent have no merits. In any event, the applicant has applied for transfer of the proceedings not on the ground that she being a lady, proceedings have to be transferred as a matter of course but also on various ground nor this Court is allowing this application on that ground. 10. I therefore, pass the following order :- a. Miscellaneous Civil Application No.3 of 2015 is allowed in terms of prayer clause (b). b. The learned Family Court at Bandra is directed to transmit the papers and proceedings of Hindu Marriage Petition No.A/80 of 2013 pending in the 3rd Family Court at Bandra to the Family Court at Nashik at Nashik Road expeditiously. c. The Miscellaneous Civil Application is accordingly disposed of in aforesaid terms. No order as to costs. 11. The parties are directed to appear before the Family Court at Nashik at Nashik Road on 14th March, 2016.