Sunita vs Karyalaya on 18 August, 2011

Bombay High Court
Sunita vs Karyalaya on 18 August, 2011
Bench: S. S. Shinde
                          1               mca34.11

                                           
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                               
           MISC. CIVIL APPLICATION NO. 34 OF 2011




                                       
     Sunita w/o Baliram Pande,
     Bhistabag Road, Near Professor
     Colony, Age: 39 years,
     Occ: Household, 




                                      
     R/o. N-9, L/108/3/HUDCO,
     Near Radhakrushna Mangal
     Karyalaya, Aurangabad.               ...APPLICANT 




                             
            VERSUS             
                  
     Baliram s/o Haribhau Pande,
     Age: 40, Occ: Service,
     R/o. N-9,L/108/3, HUDCO,
     Near Radhakrushna Mangal
                 
     Karyalaya, Aurangabad.               ...RESPONDENT

                          ...
     Mr. L.V. Sangit,  Advocate holding for
      

     Mrs. M.L. Sangit, Advocate for applicant.
     Mrs. C.E. Gaikwad, Advocate for respondent.    
   



                          ...

         
                      CORAM           : S.S. SHINDE, J.





                      RESERVED ON     : 11-08-2011
                      PRONOUNCED ON   : 18-08-2011





     JUDGMENT :

. Rule. Rule made returnable forthwith.

By consent, heard finally.

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2. This Misc. Civil Application is filed

praying therein, the transfer of the proceedings

of Hindu Marriage Petition No. 232 of 2010 filed

by the respondent herein, before the Court of the

Civil Judge, Senior Division, Akola under Section

13 of the Hindu Marriage Act, to the Court of the

Civil Judge, Senior Division, Aurangabad.

3.

It is the case of the applicant that, the

marriage between the applicant and the respondent

solemnized on 20-06-1994 at Buldana as per Hindu

Rites and Customs. Thereafter, they have started

residing at Aurangabad as the respondent is in

service in the Company at M.I.D.C. Aurangabad.

. It is the case of the applicant that, in

spite of more than 16 years are passed after the

marriage, they have not blessed by God, they have

taken medical treatment and advice of the Doctor,

but in vain. On this ground, the respondent herein

filed Hindu Marriage Petition No. 232 of 2010 in

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the Court of the Civil Judge, Senior Division,

Akola under Section 13 of the Hindu Marriage Act

for divorce. Hence, this application for transfer

of the said proceedings from the Court of the

Civil Judge, Senior Division, Akola to the Court

of the Civil Judge, Senior Division, Aurangabad.

4. Learned Counsel appearing for the

applicant submits that, the applicant is residing

at Aurangabad and the respondent is also residing

at Aurangabad and therefore, it would be

appropriate and in the interest of justice, to

transfer the proceedings of H.M.P. No.232 of 2010

from the Court of the Civil Judge, Senior

Division, Akola to the Court of the Civil Judge,

Senior Division, Aurangabad. It is further

submitted that, the applicant has filed

Application No. 814 of 2011 in the Court of the

Judicial Magistrate, First Class, Aurangabad under

Sections 18, 19, 20 and 22 of the Domestic

Violence Act and notices are issued in the said

proceedings. Learned Counsel further submitted

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that, the applicant is not having any separate

income or the respondent is not providing any

amount to fulfill day today needs of the present

applicant and the applicant and respondent are

residing in one and the same house at Aurangabad

only, and therefore, it would be just and proper

in the interest of justice, to transfer the

proceedings from the Court of the Civil Judge,

Senior Division, Akola to the Court of the Civil

Judge, Senior Division, Aurangabad.

. Learned Counsel appearing for the

applicant further submits that, Akola is near

about 300 kms. away from Aurangabad. Learned

Counsel further invited my attention to the

grounds taken in the application and submitted

that, in a proceeding filed by the husband,

convenience of the wife should be looked into.

Learned Counsel in support of his aforesaid

contention placed reliance on the judgment of this

Court in the case of Savita w/o Vijay Mahajan vs.

Vijay s/o Bajirao Mahajan reported in 2008 B.C.I.

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210 and unreported judgment of this Court in the

case of Yogita @ Swati Anil Somwanshi vs Anil

Rameshswar Somwanshi in Miscellaneous Civil

Application No.35 of 2010 dated 20-06-2011

(Coram: S.S.Shinde, J.). Therefore, it is prayed

that, this application may be allowed.

5. On the other hand, learned Counsel

appearing for the respondent vehemently opposed

the application and submitted that, this Court may

not interfere in the impugned order. Learned

Counsel also invited my attention to the averments

in the affidavit in reply and submitted that,

divorce petition before the Civil Judge, Senior

Division, Akola is in civil nature ands the

application filed by the application filed by the

applicant is in criminal nature and therefore, the

application filed by the application for transfer

may not be entertained.

6. I have given due consideration to the

rival submissions. It is not in dispute that, the

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applicant and also the respondent are residing at

Aurangabad. It is true that, the applicant being

a lady and having no source of income, will not be

able to travel 300 kms. from Aurangabad to Akola

on every date of hearing. The Hon’ble Supreme

Court held held that, in a proceeding filed by the

husband, convenience of the wife in such

proceeding should be looked into.

7.

Therefore, in the light of discussion

hereinabove, the application is allowed in terms

of prayer clause (A). The Record and Proceedings

of Hindu Marriage Petition No. 232 of 2010 filed

by the respondent herein before the Court of the

Civil Judge, Senior Division, Akola under Section

13 of the Hindu Marriage Act against the present

applicant stands transferred to the Court of the

Civil Judge, Senior Division, Aurangabad. The

concerned Court to take appropriate steps to

transfer the said proceedings within one week from

the receipt of the copy of the order of this

Court.

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8. Rule made absolute on the above terms.

Misc. Civil Application is allowed to the above

extent and stands disposed of.

sd/-

[S.S. SHINDE, J.]

sut/AUG11

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