Allowed

Mrs. Priyanka Rahul Patil v. Mr. Rahul Ravindra Patil

Bombay HC15 Sept 2023MCA/310/2022

Case brief

AI extract

What is this about?

This Miscellaneous Civil Application sought transfer of divorce proceedings from Family Court Nashik to Civil Judge Jaysingpur. The High Court ordered the transfer, prioritizing the wife's convenience due to her diabetic condition and dependency, over the husband's inconvenience.

What did the court decide?

Divorce proceedings transferred from Family Court, Nashik to Civil Judge Senior Division, Jaysingpur. Respondent granted liberty to appear via video conference.

Mrs. Priyanka Rahul Patil Vs Mr. Rahul Ravindra Patil — Matrimonial and Divorce | Bombay HC (2023)

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2023:BHC-AS:27580

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29-MCA-310-2022.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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MISCELLANEOUS CIVIL APPLICATION NO.310 OF 2022

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MRS.PRIYANKA RAHUL PATIL)
Age : 32 years, Occupation : Nil,)
R/o. Lane No.12, Dongare Building,)
Jaysingpur, Taluka Shirol, District Kolhapur)...APPLICANT

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V/s.

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RAHUL RAVINDRA PATIL)
Age : 34 years, Occupation : Service)
R/o. Flat No.5, Rajmudra Apartment,)
Near Vikrikar Nagar, Hanuman Nagar,)
Pathardi Phata, Nashik.)...RESPONDENT

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Mr.Akshay Kulkarni, Advocate for the Applicant.

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Mr.Shrikant Bhilare i/by Meraki Legal, Advocate for the Respondent.

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CORAM:ABHAY AHUJA, J.
DATE:15th SEPTEMBER 2023

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ORAL JUDGMENT:

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1.This is an Application seeking transfer of Divorce proceedings
filed by the Respondent-husband for dissolution of marriage before the
Family Court at Nashik to the Civil Judge Senior Division, Jaysingpur,
District Kolhapur.

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2. Mr.Akshay Kulkarni, learned Counsel for the Applicant-wife,

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submits that the marriage between the Applicant-wife and Respondent-

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husband was solemnized on 29th November 2012 at Ankali, Taluka
Miraj, District Sangli. That, after marriage, the Applicant-wife and
Respondent-husband started cohabiting at the Applicant’s matrimonial
home at Nashik. It is submitted that on 19th November 2013 a girl
child was born out of the wedlock. That, on 27th October 2015, the
Applicant-wife was diagnosed with Type 1 Diabetes and that the
Applicant-wife was required to take insulin everyday. It is submitted
that during the period from the date of solemnization of the marriage
till 2nd June 2018, there were several quarrels between the Applicant-
wife and the Respondent-husband and finally on 2nd June 2018, the
Applicant-wife left the matrimonial home and came to stay with her
parents at Jaysingpur at her parental home.

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3.Thereafter, on 21st August 2019, the Applicant-wife filed
proceedings under the Protection of Women from Domestic Violence
Act, 2005, before the Judicial Magistrate First Class Court (JMFC) at
Jaysingpur for maintenance. The Respondent-husband filed a reply in
the said proceedings. After hearing the parties, the JMFC Court has
awarded monthly maintenance of Rs.10,000/- for the daughter and a
maintenance of Rs.3,000/- for the Applicant-wife, which was until April
2020. That, on 23rd March 2022, the Respondent-husband has filed

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Divorce proceedings for dissolution of the marriage between the
Applicant-wife and Respondent-husband before the Family Court at
Nashik.

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4.Mr.Kulkarni, learned Counsel for the Applicant-wife, would
submit that soon after receipt of the summons, the Applicant-wife has
filed this Miscellaneous Civil Application on 13th July 2022 seeking
transfer of the Divorce proceedings from the Family Court Nashik to the
Court of Civil Judge Senior Division, Jaysingpur.

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5.Mr.Kulkarni would submit that the Applicant-wife is residing with
her school going daughter and old parents at Jaysingpur. He would
submit that although the Applicant-wife is qualified as a Bachelor of
Engineering, as of now, she is only looking after her daughter and aged
parents and is neither employed nor engaged in any professional work.
He would submit that she is dependent on her parents for her
sustenance. Learned Counsel would submit that the Applicant-wife is
diabetic, which has been admitted by the Respondent-husband in the
Domestic Violence proceedings as well as in the reply filed to this
Application. That, the distance between Nashik and Jaysingpur is 468
kilometers one way and it would take three days for her to go and

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come from Nashik. Besides, considering her diabetic condition, she
cannot travel alone and has no one to travel with her to Nashik.
Additionally, as stated earlier, she also has her responsibility towards
her daughter and old parents. The Court of Civil Judge Senior Division
at Jaysingpur is ten kilometers away from where she is staying at her
parental home. Therefore, the Applicant-wife would not only be
inconvenienced by travelling to and fro from Jaysingpur to Nashik but
the said travel would also cause undue hardship to her. On the other
hand, the Respondent-husband is a Senior Government Officer, having
all resources at his disposal to travel to Jaysingpur. Therefore, no such
inconvenience would be caused to the Respondent-husband if he has to
come to Jaysingpur. Learned Counsel would submit that proceedings
before the Nashik Court are at the stage of appearance and counselling.

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6.Mr.Kulkarni for the Applicant-wife has relied upon the decision of
this Court in the case of Devika Dhiraj Patil nee Devika Jayprakash
Buttepatil vs. Dhiraj Sunil Patil1 in support of his contentions. Learned
Counsel draws the attention of this Court to paragraphs 9 and 10 of the
said decision to submit that even if the Respondent was to pay for the
expenses of travel as well as lodging and boarding, that would still not

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1 Miscellaneous Civil Application No.167 of 2023 decided on 8^th September 2023

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be sufficient in as much as the convenience of the wife is to be
preferred over the convenience of the husband. Learned Counsel,
therefore, submits that the Application be allowed as prayed for.

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7.On the other hand, Mr.Bhilare, learned Counsel for the
Respondent-husband, opposes the Application. Learned Counsel relies
on the reply dated 12th August 2022 filed on behalf of the Respondent-
husband. Learned Counsel would submit that the diabetic condition of
the Applicant-wife is not a serious one and that the Applicant-wife has
been attending the Domestic Violence proceedings at Jaysingpur.
Learned Counsel would submit that though the Applicant-wife had
shown inclination for restitution of conjugal rights but not even once
has attended the counselling before the Nashik Court. That, this itself
shows her conduct. Learned Counsel would submit that the
Respondent-husband is a Senior Government Officer and it is not
possible for him to get leave to attend the proceedings and come to
Jaysingpur all the way, every time the matter is listed. He would submit
that no prejudice would be caused to the Applicant-wife if the Divorce
proceedings are not transferred as she would not be required to attend
the Divorce proceedings in Nashik on every date. The applicant-wife
can on those dates also attend through video conferencing. He would

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further submit that he has instructions to state that the Respondent-
husband would pay for her travelling expenses to Nashik and also make
arrangements for accommodation at Nashik for the hearings there.
Learned Counsel refers to the following decisions of the Hon'ble
Supreme Court :

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(i)Preeti Sharma vs. Manjit Sharma2

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(ii) Reema Sethi vs. Deepak Sethi 3

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Relying upon these decisions, learned Counsel would submit that this
Court dismiss the Application, in as much as, the Respondent-husband
is willing to pay all the travel and stay expenses on every occasion
when the Applicant-wife would be required to go to Nashik.

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8. After concluding his submissions, learned Counsel submits that in

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the event this Court is inclined to allow the Application, his client be
permitted to appear through video conferencing facility, in the event his
physical presence is not required in the Court at Jaysingpur.

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9.I have heard Mr.Akshay Kulkarni, learned Counsel for the
Applicant and Mr.Shrikant Bhilare, learned Counsel for the Respondent
and also considered the rival submissions.

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2 (2005) 11 Supreme Court Cases 535

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3 (2005) 11 Supreme Court Cases 568

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10.The Hon'ble Supreme Court in the case of N.C.V. Aishwarya Vs.

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A.S. Saravana Karthik Sha4has clearly held that in matters where
matrimonial proceedings come up for consideration under Section 24
of the Code of Civil Procedure, 1908, (CPC) ends of justice would be
met if the convenience of the wife is taken into consideration.
Paragraph No. 9 of the said decision is usefully quoted as under :-

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“9.The cardinal principle for exercise of power under
Section 24 of the Code of Civil Procedure is that the ends of
justice should demand the transfer of the suit, appeal or
other proceeding. In matrimonial matters, wherever Courts
are called upon to consider the plea of transfer, the Courts
have to take into consideration the economic soundness of
both the parties, the social strata of the spousesand their
behavioral pattern, their standard of life prior to the
marriage and subsequent thereto and the circumstances of
both the parties in eking out their livelihood and under
whose protective umbrella they are seeking their sustenance
to like. Given the prevailing socio-economic paradigm in the
Indian society, generally, it is the wife’s convenience which
must be looked at while considering transfer.”

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(Emphasis Supplied)

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11.Also, in the case of Rajani Kishor Pardeshi V/s. Kishor Babulal
Pardeshi5, the Hon’ble Apex Court while considering the argument of
the husband opposing the transfer on the ground that it was equally
inconvenient for him to go to Satana and that he would be willing to

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4 SCC Online SC 1199 (2022)

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5 2005 (12) SCC 237

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pay the expenses for the wife’s travel to Mumbai, the Hon’ble Supreme
Court held that in these type of matters, the convenience of the wife
should be preferred over the convenience of the husband and
accordingly transferred the proceedings pending before Mumbai Court
to the Family Court at Satana, Madhya Pradesh. Paragraphs 3 and 4 of
the said decision are usefully quoted as under :

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“3. The husband opposes the transfer on the ground that it is
equally inconvenient for him to go to Satana and that he is
willing to pay the expenses for her travel to Mumbai.

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4. In this type of matter, the convenience of the wife is to be
preferred over the convenience of the husband. Hindu
Marriage Petition No.6 of 2004, Kishor Babulal Pardeshi v.
Rajani Kishor Pardeshi pending before the Court of Civil
Judge, Senior Division at Panvel, Mumbai, Maharashtra is
transferred to the Family Court of proper jurisdiction at
Satana, Madhya Pradesh.”

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(Emphasis supplied)

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12.Following the above decision, this Court in the case of Devika
Dhiraj Patil nee Devika Jayprakash Buttepatil vs. Dhiraj Sunil Patil
(supra) has allowed the transfer of Divorce proceedings filed by the
Respondent-husband at Family Court, Nashik to the Family Court,
Pune. Paragraph 10 of the said decision is relevant and quoted as
under :

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“10.It has not been disputed by the respondent that the
applicant does not have any other male person in her family
other than her father to accompany her to Nashik. Even
though she may have travelled to Nashik Court on 7th June,

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29-MCA-310-2022.doc

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2023 for the purposes of verifying whether any divorce
petition was filed by the respondent, and the Applicant
though qualified, is dependent on her father. It is not in
dispute that her father had undergone an eye surgery and is
on medication and also has been advised surgery for fissure
and piles and therefore cannot accompany the applicant to
travel to Nashik for the purpose of attending the Court there.
Therefore even though the applicant may be having some
resources to travel to Nashik, however, considering her
father’s condition of not being able to accompany her due to
his health condition is an important factor to be taken into
account while considering the convenience of the wife. In a
country like India, important decisions such as marriage,
divorce are still taken with the guidance and blessings of
elders in the family. For a lady to travel alone for the
proceedings to a Court where the fate of her marriage is
going to be decided without any family member would
definitely be a matter of concern and cause not only physical
inconvenience but also emotional and psychological
inconvenience. The respondent would also no doubt be
undergoing panic and anxiety as referred to in the reply,
however, as observed by the Hon’ble Supreme Court in case
of Rajani Kishor Pardeshi V/s. Kishor Babulal Pardeshi
(supra) that in these type of matters, it is the convenience of
the wife that is to be preferred over the convenience of the
husband.”

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13.Therefore, the underlying principle governing the proceedings
under Section 24 of the CPC, is that convenience of the wife is to be
preferred over the convenience of the husband. In the present case, the
Applicant-wife is residing at Jaysingpur, which is 468 kilometers one
way from Nashik. It is not in dispute that it would take about three
days for her to travel to and fro from Nashik. That, it is also not in
dispute that the Applicant-wife is suffering from diabetes and is

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required to take insulin everyday. That, she has a ten year old school
going child and she also has to look after her aged parents. That,
though qualified as an Engineer, she is unemployed and dependent on
her parents for her sustenance. Merely because the husband is willing
to pay for her travel and stay at Nashik, it cannot be a ground for
disallowing this Application. Although, diabetes may not be a serious
condition, but the requirement of taking insulin and having a
companion to travel is necessary, in as much as in a diabetic condition,
a person can become hypoglycemic any time and if there is no
companion to take care, it could lead to a fatal situation.

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14.Learned Counsel for the Respondent-husband has cited two
decisions of the Hon'ble Supreme Court to submit that as long as the
travel and stay expenses are paid for, that should be sufficient and the
Transfer Application can be rejected. I am afraid that the facts and
circumstances in both the decisions relied upon by the learned Counsel
for the Respondent-husband are clearly distinguishable. In the case of
Reema Sethi vs. Deepak K. Sethi (supra), the only ground made out by
the Petitioner-wife was that she was unemployed and had no
independent source of income. The facts of the present case are quite
different. This is a case where the wife, though a diabetic, owes a duty

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to her minor school going daughter as well as to her aged parents apart
from the fact that she would have to travel 468 kilometers to and fro in
a diabetic condition without a companion. Therefore, the case of
Reema Sethi vs. Deepak K. Sethi (supra) would not lend assistance to
the Respondent-husband.

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15.Coming to the decision in the case of Preeti Sharma vs. Manjit
Sharma (supra) that was also a case of an unemployed lady totally
dependent on her uncle who was hard pressed to defend two suits at
Muzaffarnagar. As mentioned above, these are not the only facts in the
case at hand. The Applicant-wife in the present case owes a duty
towards her minor child and aged parents apart from her health
condition unlike in the case cited on behalf of the Respondent. Further,
in the said decision cited on behalf of the Respondent, the husband was
also willing to pay for the Petitioner’s companion whereas that is not
the offer being made in the present case. In my view, therefore, the
decision in the case of Preeti Sharma vs. Manjit Sharma (supra)would
also not lend any assistance to the case of the Respondent-husband.

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16.Having heard the learned Counsel and having considered the
facts of this case, in the light of the settled law, this Court is inclined to
allow the Application and transfer the Divorce proceedings filed by the

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Respondent-husband and pending in Family Court, Nashik to the Court
of Civil Judge Senior Division, Jaysingpur.

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17.The Application stands allowed in terms of Prayer clause (b)
which reads thus :

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“To transfer the Hindu Marriage Petition No.A-241 of 2022
filed by the Respondent and pending before the Ld. Family
Court Nashik, at Nashik for decree of divorce under Section
13(1)(ia) & 13(1)(ib) of the Hindu Marriage Act, 1955 to the
Court of Civil Judge, Senior Division Jaysingpur, at
Jaysingpur.”

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18.However, considering the arguments of the learned Counsel for
the Respondent-husband and the submissions made in the reply that
the Respondent-husband, being a Senior Government Officer, it would
be difficult for him to take leave every now and then, this Court grants
liberty to the Respondent-husband to appear before the Civil Judge
Senior Division at Jaysingpur through video conferencing, upon an
application made in that behalf to the Court of Civil Judge Senior
Division, Jaysingpur, on the dates when his physical presence is not
required there.

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19.It is made clear that any observations on the merits of the dispute
between the parties is only to consider this application which shall not
influence the trial or disposal of the Marriage Petition which is to be
tried and decided on its own merits uninfluenced by the said
observations.

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(ABHAY AHUJA, J.)

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Mrs. Priyanka Rahul Patil v. Mr. Rahul Ravindra Patil

Case brief

What is this about?

What did the court decide?

Mrs. Priyanka Rahul Patil v. Mr. Rahul Ravindra Patil

Case brief

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