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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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