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2022 DIGILAW 2378 (BOM)

Yasmeen Anjum v. Rashid Khan

2022-11-14

ABHAY AHUJA

body2022
JUDGMENT 1. This is an application seeking transfer of Regular Civil Suit No.9 of 2022 filed by the Respondent-husband for declaration of the marriage as null and void under Sec. 34 of the Specific Relief Act, 1963 (the "Specific Relief Act") before the Court of the Civil Judge Junior Division at Dhamagaon to the Court of Civil Judge Junior Division at Wardha. 2. The brief facts are that earlier the marriage between the Applicant-wife and the Respondent-husband was solemnized on 22/5/2013 as per the provisions of Shariya i.e. as per Muslim Rites and Ceremonies, after which, they started residing at Dhamangaon. It is the case of the Applicant that after some days of the marriage, the family members the Respondent started ill treating the Applicant-wife. A daughter was born out of their wedlock. The Applicant continued to stay with her husband under the bona fide impression that the behaviour of the husband and his family members towards her will change. That in the year 2019, there was an altercation of the Applicant with the husband and his family members, whereafter the Applicant was constrained to leave her matrimonial home alongwith her daughter Saniya. Thereafter, she came to Wardha. It is stated that the husband and the Applicant used to communicate with each other on telephone and although, the Applicant time and again indicated her willingness to join the company of her husband at Dhamangaon and to continue their matrimonial life, but the husband did not pay any heed to the same and refused to take the Applicant and their daughter to the matrimonial home. Thereafter, the Applicant went on to file proceedings under the Domestic Violence Act, 2005, before the 5th Judicial Magistrate First Class at Wardha on 20/10/2021. It is stated by the learned counsel for Applicant that the said application is still pending and interim orders of maintenance have been passed in favour of the Applicant. 3. That on 20/4/2019, the Applicant has also filed a complaint before the Police Station at Wardha under Ss. 506 and 504 of the Indian Penal Code, 1860, as the Respondent had threatened her of dire consequences and accordingly N.C.R. No.0497 of 2019 has been registered at Wardha Police Station. 4. 3. That on 20/4/2019, the Applicant has also filed a complaint before the Police Station at Wardha under Ss. 506 and 504 of the Indian Penal Code, 1860, as the Respondent had threatened her of dire consequences and accordingly N.C.R. No.0497 of 2019 has been registered at Wardha Police Station. 4. Thereafter on 7/12/2021, the husband filed Appeal No.25 of 2022 before the Sessions Judge at Wardha against the interim order passed by the 5th Judicial Magistrate First Class, Wardha in the Domestic Violence proceedings pending before the Court, which was partly allowed. Learned counsel for husband submits that the interim order was modified to the extent that the interim maintenance granted to the Applicant-wife was sustained, however, the maintenance awarded to the daughter was set aside on the ground that the daughter was not from their wedlock. 5. Learned counsel for Applicant-wife would also submit that the Criminal Miscellaneous Application No.203 of 2021 was also filed under Sec. 125 of the Code of Criminal Procedure before the 5th Judicial Magistrate First Class at Wardha, which is also pending. 6. On 18/5/2022, the Applicant-wife received a summons from the Court of Civil Judge Junior Division, Dhamangaon District Amravati that Regular Civil Suit No.9 of 2022 had been filed by the husband for declaration of Nikah as null and void under Sec. 34 of the Specific Relief Act. 7. Ms Syed, learned counsel for the Applicant-wife would submit that the Applicant is staying at Wardha alongwith her minor daughter, who is studying and who has no one else to take care except the Applicant. That the Applicant is taking tuitions and trying to make a living but even that is not sufficient. She would submit that it is not only inconvenient, but would also cause undue hardship, financial and otherwise to the Applicant, if she is required to attend the Court proceedings in Dhamangaon, which is 70 Kms away. On the other hand, it is submitted that the husband is a retired railway employee and getting a good pension and it will not cause him any inconvenience, if he has to attend the Court at Wardha, which he already is in the matter filed by the wife at Wardha. She therefore urges this Court to transfer the matter pending before the Court at Dhamangaon to the Court of Civil Judge Junior Division at Wardha. 8. She therefore urges this Court to transfer the matter pending before the Court at Dhamangaon to the Court of Civil Judge Junior Division at Wardha. 8. Per contra, Mr Ateeque, learned counsel for the Respondent-husband would submit that the Respondent is not in a good state of health to travel to attend the proceedings at Wardha. He draws the attention of this Court to the medical certificate dtd. 28/8/2022 (Annexure-2) in support of his contentions, which states that the Respondent-husband is suffering from hypertension and due to abdominal operation is having generalized weakness and cannot perform work. Learned counsel states that the suit filed by the Respondent at Dhamangaon is pending for filing written statement. 9. I have heard Ms Syed, learned counsel for the Applicant-wife and Mr Ateeque learned counsel for the Respondent-husband and with their able assistance, I have perused the papers and proceedings in the matter and given my thoughtful consideration to the matter. 10. The settled principle of law for exercise of power under Sec. 24 of the Code of Civil Procedure, 1908 is that ends of justice should demand the transfer of the suit, appeal or other proceeding. That it is the undue hardship that would be caused to the wife that would be the determining factor. That in matrimonial disputes, it is the convenience of the wife which is preferred over the convenience of the husband. 11. The Hon'ble Apex Court in a recent decision (by Their Lordships Hon'ble Shri Justice S. Abdul Nazeer and Hon'ble Shri Justice J. K. Maheshwari, JJ) in the case of N.C.V. Aishwarya ..V/s.. A. S. Saravana Karthik Sha, dtd. 18/7/2022 in Civil Application No.4894 of 2022, has in paragraph 9 observed as under : "9. The cardinal principle for exercise of power under Sec. 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wife's convenience which must be looked at while considering transfer." (Emphasis Supplied) 12. In the case of Rajani Kishor Pardeshi .V/s. Kishor Babulal Pardeshi, 2005 (12) SCC 237 , the Hon'ble Apex Court while considering the argument of the husband opposing the transfer on the ground that it was equally inconvenient for him to go to Satana and that he would be willing to pay the expenses for the wife's travel to Mumbai, the Apex Court held that in these type of matters, the convenience of the wife would be preferred over the convenience of the husband and accordingly transferred the proceedings pending before Mumbai Court to the Family Court at Satana, Madhya Pradesh. Paragraphs 3 and 4 of the said decision are usefully quoted as under : "3. 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 her travel to Mumbai. 4. In this type of matter, the convenience of the wife is to be preferred over the convenience of the husband. Hindu Marriage Petition No.6 of 2004, Kishor Babulal Pardeshi v. Rajani Kishor Pardeshi pending before the Court of Civil Judge, Senior Division at Panvel, Mumbai, Maharashtra is transferred to the Family Court of proper jurisdiction at Satana, Madhya Pradesh." (Emphasis Supplied) 13. In the case at hand, the marriage between the Applicant and the Respondent has been solemnized way back in the year 2013. On various grounds, the wife has filed the domestic violence proceedings as well as the proceeding for maintenance under Sec. 125 of the Criminal Procedure Code before the 5th Judicial Magistrate First Class Court at Wardha. Both these proceedings are pending at Wardha. It is only recently that the Respondent-husband has filed Regular Civil Suit No.9 of 2022 at Dhamangaon under Sec. 34 of the Specific Relief Act for declaration of their marriage as null and void. By an interim order of this Court, the said suit has been stayed. It has been stated that at the time of the stay, the suit was pending for filing of written statement. 14. It is undisputed that the wife is residing at Wardha with her daughter, who is stated to be studying. By an interim order of this Court, the said suit has been stayed. It has been stated that at the time of the stay, the suit was pending for filing of written statement. 14. It is undisputed that the wife is residing at Wardha with her daughter, who is stated to be studying. It is also not a dispute that the Applicant as mother is taking care of her daughter. That her only source of income is the fees she receives from the tuitions. 15. On the other hand, it is stated that the husband being a retired employee of the Railways is receiving pension. That he also has some health issues making it inconvenient for him to work/travel. 16. As observed above, it is the convenience of the wife that has to be preferred over the convenience of the husband. And given the present socioeconomic scenario in Indian Society, it is the wife's convenience which is to be looked into while considering transfer. The Applicant has a minor daughter, who is studying, who has to be taken care of at Wardha. Further as can be seen she has meager means of survival. Travel from Wardha to Dhamangaon i.e. 70 Kms two ways every time, when the matter is listed for hearing would not only cause undue hardship, but also inconvenience to the Appellant. In my view, therefore, it would be in the interest of justice, if the proceedings before Dhamangaon Court are transferred to the Court of Civil Judge Junior Division at Wardha. 17. In view of the above discussion, let the Regular Civil Suit No.9 of 2002 pending before the Civil Judge Junior Division, Dhamangao, District Amravati be transferred to the Civil Judge Junior Division at Wardha. 18. Considering that the husband is a retired person and also having health issues, it is made clear that whenever the physical presence of the husband is not required before the Court at Wardha, the Respondent-husband is permitted to attend the proceedings through video conferencing subject to availability of such facilities upon an appropriate application made in that behalf before the said Court at Wardha. 19. The application stands allowed in the above terms. No costs. 20. All to act on an authenticated copy of this decision.