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Yashika v/s Yagnesh

    Misc. Civil Application (TR) No. 61 of 2021
    Decided On, 11 November 2022
    At, In the High Court of Bombay at Nagpur
    By, THE HONOURABLE MR. JUSTICE ABHAY AHUJA
    For the Applicant: A. P. Thakare, Advocate. For the Respondent: ----------


Judgment Text
Oral Judgment:

1. Heard.

2. This is an application filed under Section 24 of the Code of Civil Procedure, 1908 (the “CPC”) by one Yashika w/o Yagnesh Padwal seeking to transfer the Marriage Petition No.137 of 2022, pending before the Civil Judge Senior Division, Sindhudurg at Oros to the Court of Civil Judge Senior Division at Amravati, where the Applicant resides.

3. Earlier, the marriage between the Applicant Yashika and the non-applicant Yagnesh, who is the husband was solemnized on 02.12.2019 in District Pune as per the community customs and rituals.

4. That after the marriage, the Applicant-wife went to Sindhudurg to the house of her husband Yagnesh and was residing there. It is the case of the Applicant that soon after the marriage, the husband and his family members started ill treating the Applicant on trivial issues. That they also physically and mentally harassed her. It is submitted that the non-applicant-husband and his family members have demanded gold ornaments from the Applicant and her father, which demands have been fulfilled by the Applicant’s father. However, she was forcefully dropped by her husband at her parents home in Bhatkuli, Amravati in the middle of the lockdown period. That on 24.10.2020, the Applicant-wife Yashika gave birth to a baby boy, who was born premature and is in need of regular medical attention and checkup.

5. Learned counsel would submit that petition under Section 12(1)(a)(c) of the Hindu Marriage Act, 1955 has been filed by the Husband seeking a decree of nullity of marriage before the Court at Sindhudurg. That on 11.01.2021, a written complaint was filed by the Applicant-wife against the non-applicant-husband and his relatives with Bhatkuli Police Station, which was referred to the Women’s Cell.

6. It is submitted that the proceedings before Sindhudurg Court have already been stayed by an order of this Court on 22.03.2021. He would submit that the proceedings before Sindhudurg Court were stayed at the stage of deciding the matter ex-parte against the Applicant, and therefore, no further progress has been made in view of the stay granted by this Court.

7. Learned counsel submits that presently the Applicant-wife is residing at Bhatkuli, District Amravati with her parents after desertion by the husband. He would submit that the distance between Amravati and Sindhudurg is approximately 910 Kms and it takes almost 20 hours to travel from Amravati to Sindhudurg. Therefore, it is not convenient for the Applicant-wife to travel such a long distance every time when the matter is listed.

8. Learned counsel would submit that due to the medical complications because of premature delivery of the Applicant and the old age of the mother and father, who are suffering from Diabetes, Hyper Tension and High Blood Pressure, it would be very arduous for the Applicant to go to Sindhudurg to attend the Court’s proceedings. He would submit that the Applicant’s father, who was working as an agricultural labourer is today jobless; the mother being a home maker as such the financial condition of the parents is not sound. Learned counsel submits that it would be very difficult for them to bear the expenses for travel of the Applicant to Sindhudurg.

9. That the Applicant has to take care of her son and his requirements and also to take care of her parents and that it would not only cause undue hardship but also be extremely inconvenient to attend the proceedings before the Sindhudurg Court. It is submitted that the non-applicant-husband is not even paying maintenance to the wife although he is financially sound, working as Senior Systems Engineer with a Multinational Software Company and is also having family business in the Cashew Industry. That he can always come to Amravati for the Court proceedings. Learned counsel therefore urges this Court to transfer the proceedings before Sindhudurg Court to the Family Court at Amravati.

10. I have heard learned counsel for Applicant-wife and with his able assistance, I have perused the papers and proceedings in the matter.

11. It is observed that the non-applicant-husband has refused to accept the Court’s notice, which then had to be affixed on the door of his house. It therefore appears that the husband is not interested in opposing this application.

12. There is no doubt that while considering the transfer of matrimonial proceedings under Section 24 of the CPC, the guiding principle is the hardship and inconvenience to the wife. The Hon’ble Apex Court in a recent decision dated 18.07.2022 (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, in Civil Application No.4894 of 2022 arising out of S.L.P.(C)No(s).16465 of 2021, has in paragraph 9 observed as under:

“9. The cardinal principle for exercise of power under Section 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)

13. Therefore, the fundamental principle for exercise of the power under Section 24 of the CPC is that ends of justice should demand the transfer of the suit, appeals or other proceeding. In matrimonial matters and particularly in the context of the Indian Society, generally, it is the wife’s convenience, which is to be looked into.

14. In this case, although the marriage was solemnized on 02.12.2019, the non-applicant-husband has allegedly forcefully dropped the wife to her parents house in the middle of the lockdown period, after which, she has given birth to a baby boy on 24.10.2020. Considering that the child was born premature on 24.10.2020, he would be just about two years and also require constant medical and other attention. It would be therefore very difficult for the Applicant-wife to leave her child or even take her child for attending the matter when listed before Sindhudurg Court. The distance between Sindhudurg and Amravati is 910 Kms and as submitted, it takes almost 20 hours to travel from Amravati to Sindhudurg. That the Applicant does not appear to have any source of income and is solely dependent on her aged father. Considering the Applicant’s financial condition, it would be an expensive affair travelling to Oros. That the parents of the Applicant-wife do not appear to be well to do and that would certainly aggravate the undue hardship and inconvenience caused, if the Applicant is required to travel to Sindhudurg. The non-applicant-husband works for a multinational company and also has a family business. As such he has the wherewithal to attend the matter before the Court at Amravati. The balance of convenience is clearly in favour of the Applicant-wife.

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> 15. In the circumstances, looking at the convenience of the Applicant-wife, this Court is inclined to allow the application in terms of prayer Clause (i). Let Marriage Petition No.137 of 2020, pending before the Court of the Civil Judge Senior Division, Sindhudurg at Oros be transferred to the Court of Civil Judge Senior Division at Amravati. 16. It is made clear that, if a video conferencing facility is available in the Court at Amravati, then on dates when the physical presence of the non-applicant-husband is not required, he may be permitted to attend the proceedings through video conferencing, upon an appropriate application made to the Court at Amravati in that behalf. 17. The application stands allowed in above terms. No costs. 18. All to act on authenticated copy of this decision.
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