ORDER
S.B. Deshmukh, J.
1. Heard the learned Counsel Smt. Deepali Jape-Ansingkar, for the applicant and learned Counsel Mr. B. G. Deshmukh, for the respondent.
2. The applicant had filed Criminal Misc. Application No. 40/1994, in the court of Judicial Magistrate, First class, Gangakhed, Dist. Parbhani, under Section 125 of the Code of Criminal Procedure. It was alleged in the application by the present applicant/wife that she was married with the respondent/husband, 10-11 years prior to the filling of the said application at village Banwas, taluka : Palam, District : Parbhani. The marriage was blissful for about three years. Thereafter, she was being ill-treated and reached to her mother's house by the respondent at Gangakhed before 1993. The learned Judicial Magistrate, First Class, Gangakhed, after hearing the parties, by the Judgment and order dated 08-02-1996 awarded an amount of Rs. 300/- per month towards maintenance in favour of the present applicant and amount of Rs. 100/- was awarded by way of costs. It is to be noted that the present applicant and her parents, before marriage, were residing at village Banwas, Taluka : Palam, Dist. Parbhani and the respondent, was also resident of said village i.e. Banwas, Taluka : Palam. Dist. Parbhani.
3. The applicant, has alleged in the application, that she is suffering from the tuberculosis. Her father is no more. Her mother and brother are residing at Aurangabad. She was being neglected and refused to maintain by the respondent and, therefore, was constrained to take shelter of her mother and brother. She is also residing along with them at Aurangabad. The present applicant had filed five applications under Sections 125 of the Code of Criminal Procedure for enforcement of order passed by the learned Judicial Magistrate, First Class, Gangakhed, Dist. Parbhani in Criminal Application No. 40/1994 All these applications, undisputedly are pending in the Court of Judicial Magistrate, First Class Gangakhed. These applications are bearing Criminal Application Nos. 27/1998, 141/1999, 84/2000, 87/2001 and 93/2002. The applicant has also filed Criminal Misc. Application No. 85/2000, for enhancement in the amount of maintenance, under Section 127 of the Code of Criminal Procedure in the Court of Judicial Magistrate, First Class, Gangakhed. This application, at present is pending. By this application, the present applicant is seeking enhancement from amount of Rs. 300/- to amount of Rs. 1,500/- by way of monthly maintenance from the respondent. This application, seems to have been filed on July 28, 2000 against the respondent.
4. The applicant, has filed this Criminal Application under Section 407 of the Code of Criminal Procedure. The applicant seeks transfer of five recovery applications bearing Criminal Application Nos. 27/1998, 141/1999,84/2000,87/2001 and 93/2002 and one Criminal Misc. Application No. 85/2000 filed for enhancement of the amount of maintenance under Section 127 of the Code of Criminal Procedure, from the Court of Judicial Magistrate, First Class, Gangakhed to the Family Court at Aurangabad. According to the applicant, it is not convenient for her to attend these cases pending in the court of learned Judicial Magistrate, First Class, Gangakhed, as from the numbers of these applications, it appears that the applicant is seeking enforcement of the order of the maintenance passed by the learned Judicial Magistrate, First Class, Gangakhed, since the year 1998. Mr. B.G. Deshmukh, the learned Counsel for the respondent submits that he has paid the amount of maintenance from time to time. According to the learned Counsel Mr. B,G. Deshmukh, these applications cannot be transferred from the court of learned Judicial Magistrate, First Class, Gangakhed to the Family Court, at Aurangabad, The initial application under Section 125 of the Code of Criminal Procedure was entertained and decided by the learned Judicial Magistrate, First Class, Gangakhed and the application seeking enhancement in the amount of maintenance, under Section 127 of the Code of Criminal Procedure, ought to be decided by the same Magistrate i.e. learned Judicial Magistrate, First Class at Gangakhed. The learned Counsel Mr. B.G. Deshmukh, relied upon the Judgment of this Court in the matter of Vithalrao Marotrao Awadhut v. Ratnaprabha Awadhut and Ors. reported in 1978 Criminal Law Journal 1406. In the cited case, applicant-wife had filed an application under Section 488 of Criminal Procedure Code in the court of learned Judicial Magistrate, First Class, Wardha and said application was partly allowed and the maintenance was granted in favour of the applicant/wife. Subsequently, another application under Section 488 of the Criminal Procedure Code was filed on the same facts by the applicant in the Court of the learned Judicial Magistrate, First Class, Court No. III at Nagpur. Objection raised, was that the earlier application was under Section 488 of !he Criminal Procedure Code and had been decided by the learned Judicial Magistrate, First Class at Wardha and, therefore, application for maintenance on the same facts, before the learned Judicial Magistrate, First Class at Nagpur, is not maintainable. This Court held in para 21 of the Judgment that the remedy for the applicant/wife for enhancement of the amount of maintenance is not to file a fresh application in the Court of another Magistrate having co-extensive jurisdiction but to move the same Magistrate, who passed the earlier order; Facts of the case on hand are altogether different. As noted above, the initial application for maintenance, filed by the applicant-wife, in the Court of learned Judicial Magistrate, First Class at Gangakhed was allowed and amount of Rs. 300/- per month was granted towards the maintenance. The application for enhancement in the amount of maintenance bearing Criminal Misc. Application No. 85/2000 is filed by the applicant in the Court of the learned Judicial Magistrate, First Class, Gangakhed itself. As on today also, said application is pending in the same Court. Therefore, in my view, the ratio of the Judgment relied upon by the learned Counsel for the respondent, is not helpful to the respondent.
5. The present criminal application is filed by the applicant under Section 407 of the Code of Criminal Procedure. Undisputedly, it is a matrimonial dispute between the husband and wife. According to the applicant-wife, she is residing with her mother and brother who are at present residing at Aurangabad. It is inconvenient and hazardous to the applicant-wife to attend various proceedings for recovery of the amount of maintenance and application for enhancement of allowance of maintenance under Section 127 of the Code of Criminal Procedure, pending in the Court of the learned Judicial Magistrate, First Class, Gangakhed. Power vested with this Court under Section 407 of the Code of Criminal Procedure, is resorted to. In my view, it is a case of Sub-clause (c) of Sub-section (1) of Section 407 of the Code of Criminal Procedure, which alone is extracted and reproduced below -
407. Power of High Court to transfer cases and appeals. - Whenever it is made to appear to the High Court -
(a)....
(b)....
(c) that an order under this section is required by any provision of this Code. or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. it may order--
(i)....
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction:
6. I have considered the statements made in the reply affidavit. In concluding paragraph, it is denied that the applicant is residing at Aurangabad along with her brother and mother. According to the respondent, applicant is residing at village Banwas. Taluka: Palam and only with intention to harass the present respondent, application seeking transfer of the proceedings, is being filed. It is an undisputed fact that present respondent is residing at Dhanegaon, Taluka and Dist. Narided. In my view, it is difficult to accept the contention of the respondent that the present applicant has filed this application with false contention that she is residing at Aurangabad. For the sake of argument, the contention raised by the respondent even if, is accepted, in that circumstance, the present applicant-wife has to attend the Family Court at Aurangabad from village Banwas, Taluka : Palam, Dist. Parbhani. Ultimately, it will be inconvenient and expensive for her to attend the Family Court, at Aurangabad. In my view, the convenience of the applicant-wife needs to be taken into consideration. From the record, it appears that the applicant-wife was/is required to file five proceedings for recovery of the amount of maintenance from the respondent-husband and all these proceedings are pending in the Court of Judicial Magistrate, First Class at Gangakhed, Dist. Parbhani. In this view of the matter, all these five proceedings for recovery and one Criminal Misc. Application No. 85/2000 filed under Section 127 of the Code of Criminal Procedure, by the present applicant against the respondent-husband, can be withdrawn from the Court of learned Judicial Magistrate, First Class, Gangakhed, Dist. Parbhani and transferred to the Family Court at Aurangabad.
7. In the result, criminal application is allowed. Criminal Misc. Application Nos. 27/1998, 141/1999, 84/2000, 87/2001, 93/2002 (All these applications are for recovery of the amount of maintenance) and Criminal Misc. Application No. 85/2000 (Application under Section 127 of the Cr. P.C.), are withdrawn from the Court of Judicial Magistrate, First Class Gangakhed, Dist. Parbhani and are transferred to the Family Court at Aurangabad, for decision according to law.
8. Rule accordingly is made absolute in the above terms. No costs.
9. Criminal application accordingly is allowed in the above terms and disposed of.