JUDGMENT
R.M.S. Khandeparkar, J.
1. Rule. By consent, rule is made returnable forthwith.
2. Heard the learned Advocates for the parties. Perused the papers.
3. The petitioner seeks transfer of Matrimonial Petition being P.A. No. 885 of 2001 pending before the Family Court No. 5 at Pune to the Family Court at Bandra, Mumbai, and to be heard along with the petition filed by the petitioner being M. J. Petition No. C-91 of 2002 pending before Court Room No. 7 in the Family Court at Bandra, Mumbai.
4. Undisputed facts in the matter are that the marriage between the petitioner and the respondent was solemnized as per the Hindu Vedic rites at Knar, Mumbai, on 11th May, 2001. The petitioner joined the respondent at her matrimonial house at Pune. Subsequent to the said marriage, some differences arose between the parties in June, 2001 and, thereafter, the petitioner started residing with her parents at Khar, Mumbai. The respondent filed Matrimonial Petition being PA No. 885 of 2001 in the Family Court at Pune on 27th December, 2001 seeking for decree of nullity of the marriage. During pendency of the said petition, the petitioner in the month of April, 2002 filed petition for maintenance in the Family Court at Bandra, Mumbai, being Petition No. C-91of 2002. The petitioner delivered a baby girl in Nursing Home at Mumbai on 17th May, 2002.
5. It is the case of the petitioner that on account of her pregnancy, she was not able to attend the proceedings in the Family Court at Pune and after the delivery of the child, it became still impossible for her to attend the said proceedings. Presently the child is of 5 months old. Considering the difficulties faced by the petitioner, in the facts and circumstances of the case, the petitioner has filed the present application under Section 24 of the Code of Civil Procedure for transfer of the proceedings from Family Court, Pune to Family Court at Bandra, Mumbai. It is the case of the petitioner that she is totally at the mercy of her parents for financial help and for maintenance of herself as well as her child, and, in the circumstances, she finds it difficult and totally inconvenient to attend the proceedings at Family Court, Pune. On the other hand, it is the case of the respondent that all the witnesses of the respondent are from the District of Pune and, therefore, it will cause great inconvenient to the witnesses of the respondent to attend the Family Court at Bandra, Mumbai.
6. Placing reliance upon the decision of the Apex Court in the matter of Sumita Singh v. Kumar Sanjay and Anr., , and drawing attention to Section 19 of the Hindu Marriage Act, 1955, it was submitted by the learned Advocate for the petitioner that the Family Court at Bandra, Mumbai, is equally competent and has jurisdiction to entertain and try the proceedings and considering the facts and circumstances of the case, the transfer of the proceedings from Family Court, Pune to Family Court at Bandra, Mumbai, is warranted. On the other hand, referring to the difficulties that will be faced by the respondent to procure presence of the witnesses at Family Court at Bandra, Mumbai, the learned Advocate for the respondent submitted that mere inconvenience to the petitioner cannot be the justification for transfer of the proceedings from Family Court, Pune to Family Court at Bandra, Mumbai. Attention was also drawn to the decision of the Apex Court in Sumita Singh’s case (supra) wherein, a distance between the two places was 1100 kilometers and the lady in that case had no arrangement for her stay at a place where the proceedings were going on.
7. Section 24 of the Code of Civil Procedure empowers the High Court and the District Court to transfer any suit or other proceeding from one court to another competent Court to try and dispose of such suit or proceeding. Undoubtedly, such transfer has to be made for justifiable reason and cannot be in arbitrary exercise of jurisdiction under Section 24 of the Code.
8. Section 19 of the Hindu Marriage Act, 1955 provides that every petition under the said Act may be presented to the District Court within the local limits of whose Ordinary Original Civil Jurisdiction the marriage was solemnized or the respondent, at the time of presentation of the petition resides, or the parties to the marriage last resided together. Obviously, the respondent has chosen to file petition in the Family Court, Pune, on the basis that both the parties had last resided at Pune. Undoubtedly, since the marriage was solemnized at Khar, Mumbai, Family Court at Bandra, Mumbai, would have also jurisdiction to entertain such petition. Therefore, it cannot be disputed that the Family Court at Bandra, Mumbai, is also a Court of competent jurisdiction to entertain the petition in question which is sought to be transferred from Family Court, Pune to the Family Court at Bandra, Mumbai.
9. The Apex Court in Sumita Singh’s case (supra) has held 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. Such transfer was sought for on behalf of the wife. Undoubtedly, in the said case, the wife had sought transfer of the matrimonial proceedings filed by her husband from a Court at Ara, Bhojpur to Delhi on the ground that she was at the relevant time living and working in Delhi and she was unable to travel up and down from Delhi to Ara, which is a distance of about 1100 kilometers, in order to defend the matrimonial proceedings and that she had no one with her to stay in Ara as her parents were residing at Gurgaon. The transfer application was objected by the husband on the ground that the wife was an educated woman and was doing very well and could, therefore, travel to Ara while her husband was unemployed. It cannot be disputed that the transfer of the case from Ara to Delhi was directed by the Apex Court in the facts and circumstances of the said case. It is equally true that the Apex Court has also observed that in a suit filed by the husband against the wife, it is the convenience of the latter must be considered.
10. Reverting to the facts of the case, it is not in dispute that, as already
observed above, the marriage was solemnized at Knar, Mumbai and the
petitioner presently resides at Mumbai with her parents. She has delivered a child
of about 5 months old. She is unemployed. There is nothing on record to disclose
that she has any independent source of income either to maintain herself or her
child. This observation is made only for the purposes of deciding the present case
and shall not prejudice the parties in the proceedings filed by the petitioner
claiming maintenance.
11. The objection on behalf of the respondent for transfer of his proceedings is mainly on the ground that the witnesses in support of his case for nullity of the marriage are from the District of Pune and therefore it will be inconvenient for the respondent to secure their presence in the Family Court at Bandra, Mumbai, to prove his case. Apparently, while the ground for transfer is inconvenience to and difficulties faced by the petitioner-wife, whereas the objection for transfer of proceedings is inconvenience to the respondent on account of difficulties which he may face in securing the presence of the witnesses. The presence of the witnesses can certainly be secured by incurring necessary expenditure for the same and if required by getting the summons issued by the Court. However, considering the inconvenience which the petitioner may suffer on account of her child of 5 months old which she has to look after and in the absence of any independent financial support to herself and her child, the said balance tilts in favour of the petitioner.
12. Besides the observations in the Apex Court’s decision in the case of Sumita Singh (supra) that in a case filed by the husband, convenience of the wife is to be considered certainly comes in favour of the petitioner coupled with the provisions of Section 19 of the said Act which gives jurisdiction to the Family Court at Bandra, Mumbai to entertain the proceedings which are initiated by the respondent in the Family Court at Pune.
13. Taking into consideration the facts and circumstances of the case, evidently the petitioner has made out a case for transfer of the proceedings from the Family Court, Pune to Family Court at Bandra, Mumbai and hence the petition deserves to be allowed in terms of prayer Clause (a) as far as it relates to transfer of the proceedings. The issue regarding hearing of the petition being P.A. No. 885 of 2001 along with M. J. Petition No. C-91 of 2002, however, is left open to be considered by the concerned Court after hearing the parties.
14. Needless to say that considering the nature of controversy, the Family Court at Bandra, Mumbai, should try to expedite the hearing in both the Petitions filed by the parties and shall dispose of the same as early as possible,
15. In the result, therefore, the petition partly succeeds. Rule is made absolute in the above terms with no order as to costs.