Misc. Civil Appln. No. 105 of 2008,Misc. Civil Appln. No. 203 of 2008,Misc. Civil Appln. No. 460 of 2008

9th September, 2008

Cases Cited:
Sunita Singh Vs. Kumar Sanjay, AIR 2002 SC 396 [Para 1,8,9]
Smt. Deepali Mukund Pawar Vs. Mukund Narayan Pawar, Misc. Civil Application No.287/2003 Dt.05.03.2004 [Para 8,10]
Ishwarlal Hiralal Gunderia Vs. Union of India, 1989 Mh.L.J. 791 [Para 10]
M/s. Siku Industries Vs. Smt. C. D'Souza, 1971 Cr.L.J. 1322 [Para 10]
Sri Nasiruddin Vs. State Transport Appellate Tribunal, (1975)2 SCC 671 : AIR 1976 SC 331 [Para 11]
Rajasthan High Court Advocates Association Vs. Union of India, AIR 2001 SC 416 [Para 11,12]
Haji Abdul Rajjak Vs. Bara Imam Masjid Trust, 2005(4) ALL MR 746=2005[11] LJSoft (URC) 19 [Para 13,14]
Kusum Ingots and Alloys Ltd. Vs. Union of India, 2004(5) ALL MR 700 (S.C.)=(2004)6 SCC 254 [Para 13,14]
Rita Mananprasad Bhundekar Vs. M. Tarachand, 2007[9] LJSoft URC 12 [Para 14]
Smt. Vidhya Shankar Iyer Vs. Shri. Shankar Nagraj Iyer, 2006(2) ALL MR 735 [Para 15]
Pratibha Khemka Vs. Sanjay Kumar Khemka, 2005(5) ALL MR 670 (S.C.) [Para 15]
Alka Dikshit Vs. Sanjay Narendra Kumar Bhatnagar, 2001 AIR SCW 5219 [Para 15]
Annamma Abraham (Sherly) Vs. Abraham Jacob, (2000)10 SCC 275 [Para 15]
Guda Vijayalakshmi Vs. Guda Ramchandra Sekhara Shastry, AIR 1981 SC 1143 [Para 15]

JUDGMENT

JUDGMENT :- All these Misc. Civil Applications are filed under Section 24 of the Code of Civil Procedure by wives for transfer of Hindu Marriage Petitions filed by their respective husbands (non-applicants) from the places of its institution to the place where they are residing with their parents.

In Misc. Civil Application No.105/2008, Hindu Marriage Petition No.014/2006 pending on the file of Civil Judge, Senior Division, Biloli, District Nanded, is sought to be transferred to the file of Civil Judge, Senior Division, Chandrapur. This Court has on 06.02.2008 while issuing notice for final disposal stayed further proceeding in the said H.M.P.

Misc. Civil Application No.203/2008 seeks transfer of Hindu Marriage Petition No.A-349/2007 from the file of Judge, Family Court, Aurangabad to Family Court, Nagpur. This Court has after mentioning the judgment of Hon'ble Apex Court in the case of Sunita Singh Vs. Kumar Sanjay (AIR 2002 SC 396) on 05.03.2008 issued notice, and also granted stay of further proceeding in the said matter.

Applicant in Misc. Civil Application No.460/2008 seeks transfer of Hindu Marriage Petition No.170/2008 from the Family Court No.5, at Pune to the Court of Civil Judge, Senior Division, Akola. This Court has on 29.04.2008 issued notice for final disposal and also stayed proceeding before the Family Court at Pune.

2. As the points involved in all these matters were found to be identical, with the consent of the parties all matters were taken up for final disposal and are heard together.

3. In Misc. Civil Application No.105 of 2008, the applicant - Wife has stated that she is residing with her parents at Chandrapur and is prosecuting B.Ed. Course there. She has further stated that, she has filed divorce petition vide H.M.P. No.26/2006, in the Court of Civil Judge, Senior Division at Chandrapur, Application under section 12 of the Protection of Women from Domestic Violence Act, vide Criminal Application No.88 of 2007 at Chandrapur and an application for maintenance under Section 125 of Criminal Procedure Code vide Misc. Criminal Application No.89/2006 at Chandrapur. She further states that in matters filed by her, non-applicant/husband initially avoided service of summons and his father along with advocate came to Chandrapur and filed one Revision, which came to be dismissed. At that time, the said father had threatened the applicant. It is in this background the applicant points out filing of H.M.P. No.13/2006 for Restitution of Conjugal Rights by the non-applicant in the Court of Civil Judge, Senior Division, Biloli in Nanded District. She has pointed out that to attend the said proceedings she is required to go to Delgur and to Biloli, which is not safe. She has further stated that the cases filed by her at Chandrapur are earlier in point of time and the non-applicant being a able bodied person he can very well attend the court at Chandrapur. The non-applicant has filed his reply pointing out provisions of Chapter XXXI, Rule 2 of Bombay High Court Appellate Side Rules, 1960 to raise objection that Court at Biloli being outside the jurisdiction of this Bench, such application under section 24 of Civil Procedure Code, ought to have been filed before the Aurangabad Bench, which exercises jurisdiction over Nanded District. Even attention is invited to Chapter I, Rule 5 of the Appellate Side Rules, 1960 to urge that Court from which proceedings are sought to be transferred must be subordinate and High Court should have power of superintendence on it. Reasons for transfer put forth by the applicant have been denied, without any specific stand.

I have heard Advocate Shri. Sirpurkar, Advocate for the applicant - Wife in this matter and Advocate Shri. R. N. Ghuge, for non-applicant - husband.

4. In Misc. Civil Application No.203 of 2008, the applicant - wife has stated that she is not in a position to fight out the matter at Aurangabad by undertaking travel from Nagpur to Aurangabad, which is of about 12 hours duration. She has stated that she will need escort every time and each visit may cost her parents amount of Rs.5,000/- as she has no source of income. She has pleaded that she is totally dependent on her father and cannot throw such heavy burden upon him. She has pointed out that the non-applicant husband is independent and well settled businessman, who can conveniently come to Nagpur. Non-applicant husband has filed his reply opposing the prayers, but then in paragraph no.5 of the said reply/affidavit reasons put forth by wife have not been specifically denied. He has also filed Civil Application No.4855/2008 for dismissal of the Misc. Civil Application on the ground of territorial jurisdiction by raising objection on the lines as already mentioned above.

I have heard Advocate Shri Sirpurkar, Advocate for this applicant - Wife and Advocate Shri. S. V. Sohoni, for non-applicant - husband.

5. Misc. Civil Application No.460/2008 seeks transfer to the Court of Civil Judge, Senior Division, Akola and applicant/wife therein has pointed out that her parents are permanent residents of Akola and she is constrained to reside with them. She has pointed out that she is not in a position to travel from Akola to Pune to attend the proceedings and she has further stated that recently she had delivered twins and there is no other member in the family to take care of the newly born twins and it is difficult for her to travel along with her two children from Akola to Pune, which is about 600 kms. She has pleaded that her husband has deliberately filed the proceedings at Pune. She has pointed out that she is totally dependent on her parents and has no source of income. She has further stated that she has to examine witness from Akola and she has also explained that even for filing of the application under section 24 of the Code of Civil Procedure at Mumbai she was facing difficulties and therefore she has filed the matter before Nagpur Bench (this Bench). The non-applicant has filed his reply on affidavit, but then the difficulties pointed out by the applicant have not been specifically denied, though it has been pleaded that no cause of action has accrued at Akola and all other allegations are stated to have been denied.

I have heard Advocate Shri. A. K. Chaubey, Advocate for the applicant - Wife and Advocate Shri. C. S. Kaptan, for non-applicant - husband in this matter.

6. The arguments of non-applicants reveal that their basic objection is to the competence of this Court to order such transfer. They point out the provisions of Chapter XXXI of the Bombay High Court Appellate Side Rules. The said Chapter deals with presentation of proceedings at the office of the High Court at Nagpur, Aurangabad, Panji Goa. Rule 1 mentions that all appeals, applications, references and petitions including Petitions for exercise of powers under Article 226 and 227 of the Constitution, arising in the judicial districts of Akola, Amravati, Bhandara, Buldhana, Chandrapur, Nagpur, Wardha Yavatmal and Gadchiroli which lie to High Court of Bombay shall be presented to the Additional Registrar of that High Court at Nagpur and shall be disposed of by the Judges sitting at Nagpur. Rule 2 similarly provides for matters arising out of any judicial districts of Ahmednagar, Aurangabad, Beed, Jalgaon, Jalna, Nanded, Osmanabad, Parbhani and Latur to be presented and disposed of at Aurangabad Bench. The other Rule pointed out is Rule 5 of Chapter I. Chapter-I deals with jurisdiction of Single Judges and Benches of High Court. Rule 5 states all applications for transfer of suits, appeals, Criminal cases or other proceedings pending for trials or disposal in any of the Civil Court or the Criminal Court subordinate to High Court or over which the High Court has power of superintendence to another court subordinate to or under the superintendence of High Court or to the High Court, may be disposed of by a Single Judge.

7. Rule 5 of Chapter I, therefore does not speak of Benches or any Bench of High Court as such, but contemplates High Court as a whole and said Rule 5 therefore is of no assistance to the non-applicants/husbands to show that any court functioning in any judicial district under Aurangabad Bench of this High Court ceases to be subordinate to this Bench of Bombay High Court, in such matters. Allotment of subordinate courts exclusively to different benches is not the purpose with which this rule is framed. Such mutually exclusive distribution is not even feasible. Chapter XXXI, Rule 1 contemplates matters arising in judicial districts of Akola, Amravati etc.. All applicants pointing out need of transfer of Hindu Marriage Petition can be said to be arising in judicial districts assigned to this Bench under sub-rule [1], if need to ask for transfer arises in any of those districts & transfer is also sought to court within judicial districts assigned to this bench.

8. In unreported judgment of this court dated 05.03.2004 delivered at Nagpur Bench in Misc. Civil Application No.287 of 2003 (Smt. Deepali Mukund Pawar Vs. Mukund Narayan Pawar), this Court has permitted transfer from Pune to Nagpur, after noticing the judgment in the case of Sunita Singh (supra), to record that the pendency of proceeding at the instance of wife needs to be taken into consideration. If such proceedings instituted by wife are pending in court subordinate to Principal Bench, the wife concerned can move application under section 24 of the Code of Civil Procedure before such Bench, though case filed by the Husband is in any other judicial districts. Thus this Court found that the pendency of proceedings in subordinate court at the instance of the wife gives cause of action to move concerned bench and concluded that, therefore, Nagpur Bench had jurisdiction to entertain and decide the application seeking transfer of proceedings from Pune to Nagpur.

9. Perusal of the case of Sunita Singh (supra), shows that there, transfer of proceedings was sought from Ara, Bhojpur to Delhi on the ground that wife was living and working in Delhi and she would not be in a position to travel up and down to Ara, a distance of about 1100 kms. She further had pleaded that she could not have stayed with any one at Ara, and her parents were residents of Gurgaon. The husband argued before the Hon'ble Apex Court that wife was educated woman, doing very well in her life and therefore could travel to Ara. It was pointed out to the Hon'ble Apex Court that husband was unemployed. The Hon'ble Apex Court in paragraph no.3 has observed that, it is wife's convenience that needed to be looked into and circumstances pointed out by wife were sufficient to order transfer the proceedings from Ara to Delhi.

10. Advocate Shri. Kaptan, has pointed out the judgment of Division Bench of this Court in that matter of Ishwarlal Hiralal Gunderia Vs. Union of India (1989 Mh.L.J. 791), to support his argument that as directions is to be issued to subordinate court not situated in judicial districts mentioned in Rule 1 of Chapter XXXI of the Appellate Side Rules, the request for transfer must be made to the Bench to which the judicial district where such subordinate court is situated, has been allotted. The perusal of the Division Bench judgment shows that a person permanently residing at Bombay was detained at Bombay under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. The activities objected to were carried out by him at Cochin and Delhi. The said detention was challenged before the Nagpur Bench by his father-in-law residing in Buldhana District. The Division Bench found that place of residence of detenu is not the place where the cause of action can be said to have arisen so as to maintain a challenge to the order of detention. It is observed that the place of detention provides cause of action. Thus the facts there are clearly distinguishable and said judgment has got no relevance in the present matter. Even the unreported judgment dated 05.03.2004 in Misc. Civil Application No.287/2003 (supra), similar judgment in the case of M/s. Siku Industries Vs. Smt. C. D'Souza (1971 Cr.L.J. 1322) was cited. This Court has there noticed that Criminal Proceedings before the Presidency Magistrate, Bombay were sought to be quashed in Writ Petition filed before the Nagpur Bench and therefore held that the said ruling was not at all relevant.

11. Another ruling relied upon by Advocate Shri. Kaptan, is in the case of Sri Nasiruddin Vs. State Transport Appellate Tribunal [(1975)2 SCC 671 = AIR 1976 SC 331], there the question was of division of work between Lucknow Bench and Allahabad Bench. In paragraph no.38 the Hon'ble Apex Court has concluded that there was no permanent seat of High Court at Allahabad and seat at Allahabad and Lucknow could have been changed in accordance with the provisions contained in the United Provinces High Courts (Amalgamation) Order, 1948. It is also observed that the Chief Justice of High Court has no power to increase or to decrease the areas in Oudh from time to time and after those areas were determined by the Chief Justice there was no power left with him for changing those areas. The Hon'ble Apex Court has found that the expression "cause of action" with regard to a civil matter meant that it should be left to the litigant to institute case at Lucknow or at Allahabad Bench, according to the cause of action arisen wholly or in part within either of the areas. If the cause of action arises wholly within Oudh area, Lucknow Bench will have jurisdiction and if it arises outside those areas, Allahabad Bench will have jurisdiction. The judgments considers the language of para nos.7 and 14 of the United Provinces High Courts (Amalgamation) Order, 1948. This ruling has been considered even subsequently in judgment in the case of Rajasthan High Court Advocates Association Vs. Union of India (AIR 2001 SC 416) by the Hon'ble Apex Court and therefore, reference in more detail to this judgment is not necessary.

12. In the case of Rajasthan High Court Advocates Association (supra), there was territorial bifurcation between principal seat and bench of High Court by Presidential Order. The Hon'ble Apex Court holds that Chief Justice cannot take away or confer jurisdiction by defining word "cause of action in writ cases" by making a deeming provision and said explanation reproduced in para no.3 of the report has been struck down. For the purpose of the present adjudication the consideration by the Hon'ble Apex Court in para nos.17 and 18 are relevant. In paragraph no.17 the Hon'ble Apex Court has stated that expression "cause of action" has acquired a judicially settled meaning. In the restricted sense, it means circumstances forming infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for maintenance of the suit including not only infraction of the right but the infraction coupled with the right itself. Compendiously put it would include even fact necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the court.

13. In the case of Haji Abdul Rajjak Vs. Bara Imam Masjid Trust (2006[1] Mh.L.J. 184) = 2005[11] LJSoft (URC) 19 : [2005(4) ALL MR 746], the provisions of Chapter XXXI, Rule 2 was considered by this Court and it was found that the matter under consideration there had arisen within the ordinary territorial jurisdiction of Appellate Side of the principal seat of Bombay High Court, as the impugned permission for alienation of property was applied for and refused at Pune. The objection of the respondent that properties in relation to which said permission was sought were not situated within the said jurisdiction, was held to be irrelevant. Even the judgment of Hon'ble Apex Court in case of Rajasthan High Court Bar Association (supra), as also the judgment in case of Kusum Ingots and Alloys Ltd. Vs. Union of India and another [(2004)6 SCC 254 : (2004(5) ALL MR 700 (S.C.))] has been relied upon to reach this conclusion.

14. This Court has in judgment reported in the case of Rita Mananprasad Bhundekar Vs. M. Tarachand (2007[9] LJSoft URC 12- - M./C.A.No.28/2007 decided on 23.08.2007 at Bombay), considered the identical controversy in relation to matrimonial dispute and Section 24 of Code of Civil Procedure. Prayer of applicant wife Rita was to transfer the pending divorce petition from Bhandara Family Court to Mumbai. Bhandara is judicial district under Nagpur Bench and objection raised at Mumbai was that such application for transfer ought to have been presented at Nagpur Bench. After considering the above mentioned judgment in case of Haji Abdul Rajjak [2005(4) ALL MR 746] (supra), Kusum Ignots (2004(5) ALL MR 700 (S.C.)) (supra), this Court rejected the said contention. In paragraph no.7 this court has found that wife Rita was resident of Mumbai and one of her contentions was that matrimonial petition was deliberately filed by the respondent Husband in the court at Bhandara, with a view to harass her. After noticing the fact that wife is resident of Mumbai and prayer was to transfer the proceedings to Family Court at Mumbai, within the territorial jurisdiction of Principal seat of High Court of Bombay, this Court has observed that it could not be said that the cause of action for filing of the said application for transfer arose only in judicial district of Bhandara. This Court found that cause of action also arose at Mumbai in the facts of the case. It found that the application arises in judicial district of Mumbai as well as judicial district of Bhandara.

15. In 2006(2) ALL MR 735 (Smt. Vidhya Shankar Iyer Vs. Shri. Shankar Nagraj Iyer), this Court has permitted transfer of divorce petition filed by husband at Nagpur to Family Court at Mumbai, after observing that wife had filed maintenance application in Family Court at Bombay, her three year old child was studying in Junior K.G. Class. Husband had offered travelling and staying expenses to the wife, but then this court found that it does not obviate hardship to her and her daughter in 18 hours travelling on each date of hearing.

In 2005(5) ALL MR 670 (S.C.) (Pratibha Khemka Vs. Sanjay Kumar Khemka), the Hon'ble Apex Court has allowed the request of wife to transfer matrimonial proceedings from Satna (M.P.) to Family Court at Barabanki (U.P.) on the ground that distance to be traveled was 600 kms. and she had a small child studying in 1st standard and had recently undergone a cataract operation and her aged parents were not in a position to travel with her. Her mother had also then suffered heart attack. It was observed that convenience of lady has to be kept in mind and grounds made out in the petition were sufficient for the purpose of transfer.

In 2001 AIR SCW 5219 (Alka Dikshit Vs. Sanjay Narendra Kumar Bhatnagar), request of wife to transfer proceeding from Family Court at Pune to Family Court at Lucknow was granted, after considering that wife was suffering from paranoid schizophrenia and had also undergone treatment therefor.

In (2000)10 SCC 275 (Annamma Abraham (Sherly) Vs. Abraham Jacob), divorce petition filed by husband at Jodhpur was transferred to Kerala where his wife Annamma was residing with her parents after noticing that it was impossible for her to attend the court at Jodhpur.

In AIR 1981 SC 1143 (Guda Vijayalakshmi Vs. Guda Ramchandra Sekhara Shastry), the Hon'ble Apex Court has held that power of transfer under section 25, C.P.Code was not either curtailed or excluded by Section 21 and Section 21-A of the Hindu Marriage Act.

16. Advocate Shri. Sohoni, has relied upon the provisions of Section 23[3], C.P.C., to urge that same analogy should also be applied in cases of Benches. However, it is difficult to accept this contention, as sub-section [3] speaks of different High Courts and not of different benches of same High Court. The analogy as sought to be drawn does not emanate from said provision at all.

17. In these cases wives are residing within territories of judicial districts assigned to this Bench and their proved situation in life constrains them to apply for transfer of matrimonial proceedings filed against them by their respective husbands. Their plight and sufferings are germane & hence, their ordinary residence with parents gives them a cause & reason to seek the order of transfers from this Bench. It forms a part of cause of action to seek such relief. In the circumstances, I find that the present Misc. Civil Applications also arise in judicial districts specified in Rule 1 of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 and hence this Bench has got jurisdiction and competence to take cognizance thereof. One more facet of the matter needs to be looked into. The same type of argument can be advanced by any side by pointing out that the High Court Bench relevant for judicial district in terms of chapter XXXI of Appellate Side Rules & in which the non-applicant husbands want proceedings to be continued, cannot direct the subordinate courts located in judicial districts outside their specified area to take cognizance of matrimonial proceeding transferred to them by it. Thus the objection of the non-applicants are therefore totally misconceived.

18. The facts leading to request for transfer are already stated above, I find those facts sufficient to hold that the applications arise in judicial districts mentioned in Rule 1 of Chapter XXXI of the Appellate Side Rules & to order the transfer. Accordingly all the 3 Misc. Civil Applications are allowed. The request for transfer of respective proceedings therein, are granted and the matters are transferred to the Courts as prayed for. However, in the circumstances of the case, there shall be no order as to costs.

Applications allowed.