Pursuant to the notice issued to the respondent, the respondent caused his appearance and, across the bar has tendered his affidavit in reply. Copy of the same is served on learned counsel appearing for the applicant.
2. Rule. Rule made returnable forthwith. By consent, heard finally.
3. By this application, the applicant has prayed for transfer of proceeding in H.M.P. No.22 of 2011 pending before the learned C.J., S.D. at Shrigonda, to the Family Court at Aurangabad.
4. The background facts, which necessitate to file this Misc. Civil Application, are as under:-
The respondent is the husband of the applicant and their marriage was solemnized on 1-6-2005 at Aurangabad, as per Hindu Custom. The father of the applicant had incurred entire expenses of marriage and he has also given Rs.5.00 lakh as dowry. Golden ornaments, silver pot along with the household articles were also given to the respondent. After the marriage, applicant was co-habiting with the respondent at village Chande (Kd), Tq. Karjat, District Ahmednagar. The other in-laws of the applicant was also residing in the said house. The respondent and his family members had started harassing the applicant on the count that the applicant had not given showcase, sofa-set, Gas and other articles in the marriage. The amount given in dowry was spent by the respondent for construction of house and they were again demanding more amount of Rs.2.00 lakhs from the applicant. The respondent and his family members started abusing and ill-treating the applicant, when she had shown inability of her father to pay more amount. Therefore, in the month of June, 2009, she was constrained to file a petition M.A. No.683 of 2009 for certain relief under the provisions of Protection of Women From Domestic Violence Act, 2005 in the Court of learned J.M.F.C., Aurangabad.
5. The learned J.M.F.C., Aurangabad was pleased to direct the respondent to pay Rs.2000/- and Rs.1000/- in alternate to provide rented room for applicant and her son Viraj as interim measurement. Being dissatisfied with the said order, the applicant had filed Criminal Appeal No.30 of 2010 in District and Sessions Court at Aurangabad. The learned Sessions Judge on 28.2.2011, has been pleased to grant maintenance amount Rs.4000/- p.m. to the applicant and Rs.1,500/- p.m. for her son Viraj till the decision of main petition along with cost of Rs.5000/-.
However, the respondent is avoiding to pay the said maintenance amount till today.
6. In the meantime, the respondent has filed Hindu Marriage Petition No.22 of 2011 in the Court of learned C.J., S.D., Shrigonda for dissolution of marriage of the applicant and the respondent. However, it is the case of the applicant that it is very inconvenient for her to attend the hearing of the said proceeding at Shrigonda, along with her 4 years minor son. Hence, this application for transfer of proceedings from Shrigonda to Family Court at Aurangabad, is filed.
7. Learned counsel appearing for the applicant invited my attention to the averments in the application and in particular paragraphs 6 to 10 of the application and submitted that the respondent is attending the proceedings filed by the applicant under the provisions of Protection of Women From Domestic Violence Act, 2005 in the Court of learned J.M.F.C. at Aurangabad. It is submitted that the distance of Shrigonda from Aurangabad is about 200 kilometres. The applicant will require to go to Shrigonda to attend the proceeding and she will also require of having company of her brother or father to go there. That, the applicant will also require to incur Rs.1000/- per date for travelling expenses, which she cannot afford, as she is unemployed. It is submitted that on the other hand there would be no prejudice or hardship to the respondent if the matter is transferred to Aurangabad. It is further submitted that considering the expositions of the Hon'ble Apex Court in various cases that in the matrimonial disputes, the convenience of the wife is to be looked at. Therefore, it is submitted that this Misc. Civil Application may be allowed.
8. On the other hand, the learned counsel appearing for the respondent relying upon the affidavit in reply, submits that there are threats to the respondent from the applicant and her relatives and if the respondent comes at Aurangabad for attending the proceedings, there is danger to his life. It is submitted that the proceeding initiated by the respondent is having territorial jurisdiction to decide the said proceeding since the respondent is permanent resident of village Chande (Kd), Tq. Karjat, district Ahmednagar. Therefore, he submits that the Court of learned C.J.S.D. Shrigonda, is having territorial jurisdiction to decide the proceeding initiated by the respondent under section 13(1)(i-a) (i-b) of the Hindu Marriage Act, 1955.
It is submitted that without going into the merits of the case, the respondent has no objection for transfer of the proceeding to any other convenient place except Aurangabad, as there is danger to the life of the respondent-husband from the applicant-wife and her family members. It is submitted that the respondent is ready to incur travelling expenses, along with one male member, who will accompany the applicant.
It is submitted that there is mental and physical harassment to the respondent-husband at the hands of the applicant-wife and her family members, as stated in detail in written statement, filed in the proceeding initiated under the provisions of Protection of Women From Domestic Violence Act, 2005 i.e. M.A. No.683 of 2009. It is submitted that in the said proceedings, evidence of the applicant-wife has been completed and evidence of respondent-husband was also started and recorded to some extent. However, cross of the respondent-husband was not continued by the applicant-wife on the adjourned date. Therefore, the learned J.M.F.C. has been pleased to pass order "No Cross". It is submitted that the applicant-wife filed an application on 30-3-2011 at Exh.58 to recall the respondent-husband for cross.
The said application was allowed and accordingly "no Cross order" is set aside. It is submitted that the applicant has also filed one more application on 26-4-2011 at Exh.59 wherein she had prayed to direct the respondent-husband to pay amount of ad interim maintenance and until the payment of amount of ad interim maintenance is made, the respondent-husband be restrained from participating in further proceedings in the above said matter.
Learned counsel invited my attention to paragraph 3 of the affidavit in reply to point out the conduct of the applicant. Learned counsel also invited my attention to paragraphs Nos.4, 5, 6 and 7 of the affidavit in reply to contend that the proceedings initiated by the applicant-wife is just to harass the respondent-husband. It is submitted that the applicant-wife is interested in filing the proceedings against the respondent-husband and harassing him mentally and physically by taking recourse of various provisions of law.
Learned counsel appearing for the respondent submits that the applicant-wife and her minor son have filed R.C.S. No.129 of 2012 in the Court of learned C.J., J.D., Karjat in the month of May, 2012 for partition of the properties against the respondent-husband and 25 other family members, in which notices have been issued and the respondent-husband has caused his appearance. Therefore, it is submitted by the counsel for the respondent that, there is no any inconvenience to the wife to attend the proceeding initiated by the respondent at Shrigonda.
9. I have given anxious consideration to the rival submissions canvassed by the counsel for the respective parties. It is true that various proceedings are initiated by the applicant-wife at Aurangabad and at Karjat, as the case may be. However, while considering the prayer for transfer of the proceedings initiated by the husband, the convenience of the wife should be looked at, as held by the Supreme Court in the case of Sumita Singh vs. Kumar Sanjay, 2001(10) SCC 41. In the said case, the Supreme Court held that, in the proceedings filed by the husband, it is the convenience of the wife that should be looked into. Therefore, this application will have to be considered favourably from that angle also.
10. In ground Nos.7 to 10, the applicant has stated various grounds including inconvenience, distance from Aurangabad to Shrigonda and other factors are stated, which would make unable to the wife to travel from Aurangabad to Shrigonda. It is also not in dispute that the proceedings which are initiated by the applicant under the provisions of Protection of Women From Domestic Violence Act, 2005, at Aurangabad, and the respondent has attended and participated in those proceedings. Therefore, in my opinion, the proceeding i.e. H.M.P. No.22 of 2011 pending before the learned C.J., S.D. at Shrigonda, deserves to be transferred to Family Court at Aurangabad.
11. Accordingly, H.M.P. No.22 of 2011 pending before the learned C.J., S.D., Shrigonda shall stand transferred to the Family Court at Aurangabad. The concerned Court to take steps to send the entire record and proceedings of H.M.P. No.22 of 2011 to the Family Court at Aurangabad within a week from the date of receipt of copy of this judgment.
12. Since the proceedings are matrimonial in nature, it is desirable that the Family Court, Aurangabad should decide the said H.M.P. as expeditiously as possible, however, within a period of six months from today. It is made clear that the Family Court may not grant unnecessary adjournments to either of the parties, unless there is exceptional reason to grant such adjournment.
13. Application is allowed to the above extent.
14. Rule is made absolute in the above terms.