Allowed

Rita Mananprasad Bhondekar v. Mananprasad Tarachand Bhondekar

Bombay HC23 Aug 2007MCA/28/2007

Case brief

AI extract

What is this about?

This application, filed under Section 24 CPC, sought transfer of a divorce petition from Bhandara to the Family Court at Bandra. The Single Judge held the application arose in both jurisdictions due to the respondent's frequent visits to Mumbai. The petition was transferred, and the Family Court was directed not to insist on the respondent's personal appearance given his medical ailments.

What did the court decide?

Marriage Petition No.98 of 2006 transferred from Civil Court Bhandara to Family Court Bandra, Mumbai. Family Court directed not to insist on Respondent's personal appearance.

Rita Mananprasad Bhondekar Vs Mananprasad Tarachand… — Matrimonial and Divorce | Bombay HC (2007)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CIVIL APPELLATE JURISDICTION

¶3

MISC. CIVIL APPLICATION NO.28 OF 2007

¶4

 Rita Mananprasad Bhondekar, )
 Aged:36 Yrs., Indian Inhabitant,)
 Occ:Service, )
 Residing at-C/o.Mr.Charajeet )
 Kumar, Rajdeep 63, Linking Road,)
 Santacruz (W), Mumbai. ) ...Applicant

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 Versus

¶6

 Mananprasad Trarachand Bhondekar)
 Age:38 Yrs., Indian Inhabitant, )
 Occ: Business, )
 Residing at 37, Mota Nagar, )
 Tumsar Road, Dist:Bhandara, )
 Maharashtra 411 912. ) ...Respondent

¶7

---

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 Shri V.M.Parashurami i/by Shri Ashish S.Gaikwad for
 the Plaintiff.

¶9

 Shri M.V.Jain for the Respondent.

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---

¶11

 CORAM : ABHAY S.OKA, J.

¶12

DATE ON WHICH SUBMISSIONS
ARE HEARD. : JUNE 29, 2007.

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DATE ON WHICH JUDGMENT IS

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PRONOUNCED. : AUGUST 23, 2007.

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JUDGMENT:

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 1. This is an Application made under section 24 of
 the Code of Civil Procedure, 1908 (hereinafter
 referred to as the said Code). The Applicant is the
 wife of the Respondent. The marriage between the
 Applicant and the Respondent was solemnised at Mumbai

¶17

 ... 2 ...

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 on 22nd December, 1999. The Respondent filed Marriage
 Petition No.98 of 2006 against the Applicant in the
 Court of the Civil Judge, Senior Division at Bhandara
 for a decree of divorce. The prayer in this
 Application is for transfer of the said Petition to
 the Family Court at Bandra, Mumbai.

¶19

 2. The Applicant has contended that from 25th
 March, 2001 she is residing in her parents’ house at
 Santacruz, Mumbai. According to the Applicant she is
 employed as a laboratory technician in a private
 hospital at Mumbai. According to the case of the
 Applicant, the Respondent has a place of residence
 both at Bhandara and Nagpur and he has been carrying
 on business at Nagpur. According to the case of the
 Applicant, the distance between Mumbai and Bhandara is
 approximately 550 to 600 Kms. According to the case
 of the Applicant, there is no one in her family who is
 in a position to accompany her to Bhandara for
 attending the court proceedings. According to the
 Applicant, she is in depressed condition and has a
 genuine difficulty in undertaking a long journey from
 Mumbai to Bhandara. A case is made out that the
 Respondent has a large earning from his business and
 he visits Mumbai every month for the purposes of his
 business. The Applicant has contended that the Court

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 ... 3 ...

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 of learned Civil Judge, Senior Division at Bhandara
 has no jurisdiction to entertain and try the Petition
 filed by the Respondent.

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 3. The Respondent has filed affidavit in reply.
 He has contended that a customary marriage between the
 parties was performed at Tumsar, District Bhandara and
 therefore, the Court at Bhandara has got jurisdiction
 to entertain and try the Petition. It is contended in
 the reply that the Applicant’s take home salary is
 Rs.10,750/- per month. It is stated that the parents
 of the Applicant own a premises in a prime location in
 Mumbai. It is stated that the Applicant’s sister is a
 medical practitioner and is residing in Mumbai. It is
 stated that the Respondent suffers from bone
 tuberculosis and other ailments. A reliance is placed
 on various documents to prove the illness. It is
 stated that the Respondent has to look after his old
 and ailing mother who is residing all alone in the
 ancestral house at Tumsar, District Bhandara. It is
 stated that due to the sickness suffered by the
 Respondent, he suffers frequent strokes and looses
 control over both his lower limbs. It is stated that
 the Respondent has no fixed income and he has to repay
 the loan taken from HDFC.

¶23

 ... 4 ...

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 4. I have heard the submissions of the learned
 counsel appearing for the parties. Both the learned
 counsel have relied upon the factual assertions made
 by the parties in their respective pleadings. The
 learned counsel for the Respondent submitted that the
 present Application arises in judicial district of
 Bhandara and therefore, in view of rule 1 of Chapter
 XXXI of the Appellate Side Rules, this Application
 ought to have been presented at the Nagpur Bench of
 this Court. He submitted that only on this ground the
 Application cannot be entertained. He submitted that
 no case is made out for passing order of transfer and
 if such order is passed, it will be impossible for the
 Respondent to attend to the proceeding in the Family
 Court at Mumbai.

¶25

 5. I have carefully considered the submissions.
 At the outset, I am dealing with the objection raised
 by the learned counsel for the Respondent to the
 presentation of this Petition with the Principal Seat
 of this Court at Mumbai. Rule 1 of Chapter XXXI of
 the Appellate Side Rules reads thus:

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 "1. All appeals, applications, references
 and petitions including petitions for exercise
 of powers under Articles 226 and 227 of the

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 ... 5 ...

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 Constitution arising in the Judicial Districts

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 of Akola, Amravati, Bhandara, Buldana,

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 Chandrapur, Nagpur, Wardha, Yavatmal and
 Gadchiroli which lie to the 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;

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 . Provided that the Chief Justice, may, in
 his discretion, order that any case arising in
 any such district shall be heard at Bombay:

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 . Provided further that the Chief Justice
 may, in his discretion order that any cas
 presented at Bombay be heard at Nagpur."

¶33

 6. The contention of the learned counsel for the
 Respondent is that as the matrimonial petition of
 which the transfer is sought by this Application is
 pending in Civil Court at Bhandara, this Application
 arises in the judicial district of Bhandara and
 therefore, in view of the aforesaid rule, this
 Application will lie before the Bench of this Court at
 Nagpur.

¶34

 ... 6 ...

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 7. The Applicant-wife is a resident of Mumbai.
 One of the contentions raised by the Applicant is that
 the matrimonial petition has been deliberately filed
 by the Respondent in the Court at Bhandara with a view
 as to harass the Applicant. The prayer in the
 Application is for transfer of the said Petition filed
 by the Respondent to the Family Court at Bandra,
 Mumbai which is situated in Mumbai suburban district
 within the territorial jurisdiction of the Principal
 Seat of this Court at Mumbai. Considering the fact
 that the Applicant is a resident of Mumbai and the
 prayer in this Application is for transfer of the
 Petition filed by the Respondent to the Family Court
 at Bandra in Mumbai, it cannot be said that the cause
 of action for filing the present Application arises
 only in the judicial district of Bhandara. The cause
 of action also arises at Mumbai considering the facts
 of this case.

¶36

 8. It will be necesary to refer to a decision of
 the learned single Judge of this Court in the case of
Haji Abdul Haji Abdul Razkar Yasim Patel Vs. Bara
Imam Masjid Trust & Ors (2006(1) Maharashtra Law
Journal page 184). The learned single Judge has
 extensively considered the decision of the Apex Court
 in the case of Kusum Ignots and Alloys Ltd Vs. Union

¶37

 ... 7 ...

¶38

of India & Anr [(2004) 6 Supreme Court Page 254]. The
 learned single Judge observed thus:

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 ". However, having regard to the High Court
 (Appellate Side) Rules, the Benches of the

¶40

 Principal Seat would be extremely slow in
 entertaining matters which have arisen within
 the ordinary territorial jurisdiction of
 another Bench".

¶41

 9. Considering the facts of the present case, in

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 my view, this Petition could have been filed both at
 the main Seat at Mumbai and at the Bench at Nagpur.
 This Application arises in both the judicial districts
 of Bhandara as well as Mumbai. The ground on which
 transfer is sought is that the Applicant is a resident

¶43

 of Mumbai and the prayer in the Application is for the
 transfer of the Petition to the Family Court at
 Bandra, Mumbai. This Application could have been
 filed in the bench at Nagpur as the Petition sought to
 be transferred is pending in the court at Bhandara and

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 the Respondent is a resident of Bhandara or Nagpur.

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 10. If the submission of the counsel for the
 Respondent is accepted, the same will result into
 serious prejudice to the litigants. For example, in a

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 ... 8 ...

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 case where a wife is a resident district Chandrapur,
 the husband residing at Mumbai files a Petition for
 divorce in the Family Court at Bandra at Mumbai and if
 the Applicant-wife by reason of poverty or ailment or
 helplessness wants to apply for transfer of the
 Petition filed in the Family Court at Mumbai to the
 Court at Chandrapur, the Applicant will have to all
 the way come to Mumbai for filing the Application for
 transfer.

¶48

 11. The phraseology used in rule 1 of Chapter XXXI
 is "arising in the judicial districts of Akola,
 Amravati.....". Therefore, as stated earlier, it can
 be safely stated that this Application arises in the
 judicial district of Mumbai as well as in the judicial
 district of Bhandara. Therefore, the first submission
 of the learned counsel for the Respondent has no
 merit.

¶49

 12. The Applicant has averred that she is working
 as a laboratory technician in a private hospital at
 Mumbai and that she is a resident of Mumbai. The said
 fact is stated in sub-paragraph (e) in paragraph No.2
 of the Application. In the reply filed by the
 Respondent this fact is not disputed. It is stated
 that the Applicant’s brother is an engineer and is

¶50

 ... 9 ...

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 residing alongwith the Applicant. The ground in the
 Application is that there is no one in the family who
 is in a position to accompany the Applicant to
 Bhandara for attending the Court at Bhandara. Thus,
 in substance the ground is that it is not possible for
 the Applicant to undertake long journey from Mumbai to
 Bhandara. The distance between the two places is
 about 550 to 600 Kms.

¶52

 13. The defence of the Respondent is that he is
 under the medical treatment as he is suffering from
 bone tuberculosis. Reliance is placed on certificate
 of Dr.J.M.Deshmukh, Nagpur in which it is recorded
 that the Respondent is under his treatment from 16th
 July, 2006 for the tuberculosis of bone and other
 ailments. The certificate records that the Respondent
 was last examined on 26th February, 2007.

¶53

 14. The Respondent has not disputed that he is
 having a business at Nagpur. According to him, his
 income is not Rs.50,000/- per month as alleged but the
 income varies from time to time. The difficulty
 pointed out by the Applicant appears to be very
 genuine. Merely because the Applicant has a brother
 who is an engineer it cannot be said that he is
 available to accompany the Applicant to Bhandara. The

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 ... 10 ...

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 Applicant will have to make frequent visits to
 Bhandara as she will have to give instructions from
 time to time to the local lawyer engaged by her. The
 Applicant who is a woman will have to undertake a long
 journey of 600 Kms very frequently from Mumbai to
 Bhandara. It must be stated here that in paragraph
 No.7 of the Application, it is specifically averred
 that the Respondent frequently visits Mumbai for his
 business. There is no specific denial of the said
 averment in the reply filed by the Respondent.
 Infact, in paragraph No.11 of the reply, the
 Respondent has specifically dealt with other averments
 made in paragraph No.7 of the Application regarding
 his income. In my view, a case is made out for
 passing an order of transfer. As the Respondent was
 under medical treatment, the Family Court can be
 directed not to insist on his personal presence unless
 it is necessary.

¶56

 15. Hence, I pass the following order:

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 (i) The Application is allowed.

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 (ii) Marriage Petition No.98 of 2006 is hereby
 transferred from the Court of learned Civil
 Judge, Senior Division, Bhandara to the Family

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 ... 11 ...

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 Court at Bandra, Mumbai.

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 (iii) The Family Court at Bandra will not insist on
 personal appearance of the Respondent unless
 it is absolutely mandatory.

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 (iv) The Family Court will issue notice of the date
 fixed for hearing to both the parties.

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 (v) The record of the case shall be transmitted by
 the Court at Bhandara within a period of two
 weeks from the date of receipt of writ of this

¶64

 order.

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 (vi) Writ to be sent immediately.

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 (vii) No orders as to costs.

¶67

JUDGE

Rita Mananprasad Bhondekar v. Mananprasad Tarachand Bhondekar

Case brief

What is this about?

What did the court decide?

Rita Mananprasad Bhondekar v. Mananprasad Tarachand Bhondekar

Case brief

What is this about?

What did the court decide?

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