Pooja Pravin Khanderao Vs Pravin Prahlad Khanderao

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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MISCELLANEOUS CIVIL APPLICATION NO.50 OF 2023

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Pooja Pravin Khanderao… Applicant
Vs.

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Pravin Prahlad Khanderao … Respondent

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Ms. Brenda D’Souza, Legal Aid Advocate for the Applicant.
None for the Respondent.

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CORAM :ABHAY AHUJA, J.
DATE :07 DECEMBER, 2023.

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P.C. :

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1. Today when the matter is called out, Ms. Brenda D’Souza, learned counsel

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for the Applicant who has been appointed through legal aid submits that the
rejoinder has been filed in the matter. Learned counsel submits that she had
sought to serve the rejoinder upon the Respondent-husband. However, the
packet has been returned with the remark “Refused to accept”. Learned counsel
urges this Court to hear the application and pass orders.

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2.A perusal of the record indicates that the Respondent had filed a reply
earlier and pursuant to the said reply dated 5th July, 2023, the Applicant has
filed a rejoinder which was sought to be served upon the Respondent which the
Respondent has refused to accept.

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Priya R. Soparkar

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3. It is submitted that the marriage between the Applicant and the
Respondent was solemnized on 18th February, 2018 as per Buddhist rites. The
learned counsel for the Applicant would submit that the only bone of contention
in the marriage is that the Applicant wants to live at Mumbai whereas the
Respondent refused to do so and filed Divorce Petition before the Family Court,
Khamgaon , District Buldhana .

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4. It is submitted that on 16th February, 2019 the Applicant phoned her
mother and called her to Shirajgaon Deshmukh at the residence of Respondent
and both of them together left for Mumbai. After that the Respondent has filed
the divorce proceedings before the Family Court, Khamgaon in the year 2019.

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5. Ms. D’Souza would submit that the Applicant is presently employed in a

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hospital as an Aaya and staying with her mother and also undergoing some
training to become a nurse. It is submitted that the Applicant comes from very
poor family background and she is staying with her widowed mother and also
takes care of her mother who is working as domestic maid in people’s homes.
That for the Applicant to travel every now and then when the matter is listed
before the Family Court at Khamgaon would not only be inconvenient but also
cause undue hardship considering the financial condition. Apart from the fact
that it would be an expensive affair, the distance between Mumbai and
Khamgaon is 408 kilometers and to travel to Khamgaon, being a lady would be

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Priya R. Soparkar

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too risky and particularly to undertake the early morning or late night
journeys. Ms. D’Souza would submit that on the other hand the Respondent-
husband is a carpenter and earns approximately Rs.1000/- per day and not a
daily wage earner as claimed in the reply. That the Respondent has mentioned
that his parents are very old is also an incorrect statement as the Respondent
has a Bungalow and lives with his mother and father who are aged between 47
to 55. That the father of the Respondent is still employed with the Buldhana
Municipality and therefore, it cannot be said that the Respondent is a man of no
means. It is submitted that the very fact that the Applicant has approached the
Legal Aid itself shows that the Applicant is not in a good financial condition.
Therefore, although the reply filed by the Respondent is also through Legal Aid
Buldhana, the same has been filed by giving false information about himself and
his family. Learned counsel submits that in view of the principles laid down by
the Hon’ble Supreme Court in the cases of N.C.V. Aishwarya Vs. A.S. Saravana
Karthik Sha1 as well as Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi2, this
Court transfer the divorce proceedings filed by the husband before the
Khamgaon Court to the Family Court at Bandra.

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6.I have heard the learned counsel and also perused the application as well
as the reply and the rejoinder. The Respondent, though served, has chosen to

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remain absent and not represented although a reply has been filed on his

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1 SCC Online SC 1199 (2022)

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2 2005(12) SCC 237

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Priya R. Soparkar

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behalf. In the rejoinder the contentions in the reply have been denied.

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7.Be that as it may, the law of transfer of such matters is clear. It is the
convenience of the wife that has to be seen and between the convenience of the
husband and the convenience of the wife, it is the convenience of the wife that
has to be preferred.

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8.It is settled law that in an application pertaining to transfer under
section 24 of the Code of Civil Procedure preferred by a wife, the convenience of
the wife has to be considered. The Hon’ble Supreme court in the case of N.C.V.
Aishwarya Vs. A.S. Saravana Karthik Sha (supra) has highlighted this very
aspect. 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 spouses and their behavioural
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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Priya R. Soparkar

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9. In the case of Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi (supra)

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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 pay the expenses for the wife’s travel to
Mumbai, held that in these type of matters, the convenience of the wife would
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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10.In this view of the matter, keeping in mind the principles laid down by the

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Hon’ble Supreme Court in cases of N.C.V. Aishwarya Vs. A.S. Saravana Karthik
Sha (supra) as well as Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi (supra)
and considering the facts above, I am inclined to allow the application.

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Priya R. Soparkar

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11.The Application stands allowed in terms of prayer clause (a) which reads
thus:-

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“That by a suitable order or direction, this Hon’ble court be
pleased to transfer Petition No.A-60 of 2019 pending on the
file of Hon’ble C.J.S.D. Khamgaon Tal-Khamgaon Dist.
Buldhana to the Family Court Bandra, Mumbai. This Hon’ble
court may deem fit and proper in the interest of justice to
transfer the case to “Family Court Bandra, Mumbai before the
appropriate Judge/Bench”

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12.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 Divorce 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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Digitally
signed by
PRIYA
PRIYA RAJESH
RAJESH SOPARKAR
SOPARKAR Date:
2023.12.07
19:29:23
+0530

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Priya R. Soparkar

Pooja Pravin Khanderao v. Pravin Prahlad Khanderao

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Pooja Pravin Khanderao v. Pravin Prahlad Khanderao

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