Misc. Civil Application No. 58 of 2011

1st April, 2013

Petitioner Counsel: Shri Amol Gandhi
Respondent Counsel: Shri R.C. Patil

Cases Cited:
Sumita Singh Vs. Kumar Sanjay, 2001(10) SCC 41 [Para 7]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.

3. This Misc. Civil Application is filed seeking transfer of Hindu Marriage Petition No.258 of 2011 pending before the Civil Judge, Senior Division, Dhule to the Court of Civil Judge, Senior Division, Kopargaon.

4. It is the case of the applicant that the applicant and respondent got married on 20th April, 2006 at Fattepur in the State of Rajasthan and after marriage, the couple was residing at Dhule. Out of their wedlock, they are having two daughters namely Disha, who is three years and younger daughter Janvi, who is of eight months at the time of filing of this Misc. Civil Application. It is the case of the applicant that as the applicant gave birth to female child, the respondent and in laws all the while harassed the applicant. Thereafter, at the time of delivery of second child, the applicant came to Shirdi i.e. the place of her parents. As the applicant begotten second female child, on 06.02.2010, the respondent came to Shirdi and abused the applicant in filthy language and refused to take away her to matrimonial house. It is further case of the applicant that the respondent refused to maintain her and cohabit with her. Therefore, applicant is residing at her parental house at Shirdi with two small daughters. It is case of applicant that respondent has not paid maintenance to her though in law respondent is bound to maintain the applicant. The applicant did file the proceedings before the Judicial Magistrate, First Class, Rahata.

5. The learned counsel appearing for the applicant submits that there are two daughters aged of 5 years and three years and it is difficult for the applicant-wife to travel from Shirdi to Dhule to attend the proceedings in H.M.P. No. 258/2011 which are pending in the Court of Civil Judge, Senior Division, Dhule. Therefore, mainly on the ground of inconvenience the applicant has prayed for transfer of H.M.P. No. 258/2011 from Civil Judge, Senior Division, Dhule to Civil Judge, Senior Division, Kopargaon.

6. The learned counsel appearing for the respondent vehemently opposed the prayer. He submits that the respondent is ready to cohabit with the applicant. He submits that he is ready to maintain the applicant-wife and also two daughters. He therefore, submits that this application may be rejected. He further submits that the proceedings for maintenance instituted by the applicant have already been disposed of.

7. Upon hearing the learned counsel for the parties and upon careful consideration of avernments made in the application and in view of the undisputed position that the two daughters namely Disha and Janvi are staying with the applicant and the applicant has to maintain them, in my opinion, the balance of convenience would lie in favour of the applicant. The Supreme Court in case of Sumita Singh vs. Kumar Sanjay [2001(10) SCC 41] held that, in the proceedings filed by the husband, it is the convenience of the wife that should be looked into. In number of pronouncement of the Supreme Court and also of this Court, the same view is reiterated. In the facts and circumstances of the case, it is not in dispute that the two minor daughters are staying with the applicant and it is very difficult for the applicant to travel from Shirdi to Dhule. Therefore, in my opinion, the application deserves consideration. There is no dispute that the distance between Shirdi to Dhule is approximately 200 Kms.

8. Therefore, in the light of the above, the following order is passed :-

(i) The application is allowed in terms of prayer clause 'A'.

(ii) The Court of Civil Judge, Senior Division, Dhule to takes steps to transfer the pending proceedings of H.M.P. No. 258/2011 within one week from the receipt of the order passed by this Court.

(iii) Since the proceedings in hand are matrimonial proceedings, the Court of Civil Judge, Senior Division, Kopargaon shall make endeavor to dispose of the H.M.P. as early as possible and in any case, within a period of one year from today.

(iv) The concerned Court shall not grant unnecessary adjournments to either of the parties unless there exists genuine problem.

9. Misc. Civil Application is disposed of. Rule made absolute in above terms.

Application allowed.