Allowed

Mrs. Nanda Varsha Vinod Khairnar v. Vinod Devidas Khairnar

Bombay HC13 Dec 2023MCA/508/2022

Case brief

AI extract

What is this about?

The High Court allowed an application for the transfer of divorce proceedings from Civil Judge Kalyan to Civil Judge Amalaner. Relying on Supreme Court precedents, the court held that in matrimonial matters, the wife's convenience must be preferred over the husband's when considering transfer under Section 24 CPC due to the wife's total dependence and lack of means to travel.

What did the court decide?

Divorce proceedings filed by the respondent in the Court of CJSD, Kalyan are transferred to the Court of CJSD, Amalaner.

Mrs. Nanda Varsha Vinod Khairnar Vs Vinod Devidas… — Matrimonial and Divorce | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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MISCELLANEOUS CIVIL APPLICATION NO.508 OF 2022

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Nanda Varsha Vinod Khairnar… Applicant
Vs.
Vinod Devidas Khairnar… Respondent

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Ms. Manjiri Parasnis, Advocates for the Applicant.
None for the Respondent.

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CORAM :ABHAY AHUJA, J.
DATE :13 DECEMBER, 2023.

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P.C.:

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1. This is an application seeking transfer of divorce proceedings filed by the Respondent-husband before the Court of Civil Judge Senior Division, Kalyan to the Court of Civil Judge Senior Division, Amalaner.

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2. Ms. Manjiri Parasnis, learned counsel for the Applicant would submit that

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the Respondent is neither present nor represented despite service although the
Respondent appears before the Judicial Magistrate First Class (JMFC) Court, at
Parola in the proceedings filed by the wife under 498A of the Criminal Procedure
Code, 1973 as well as under the Domestic Violence Act, 2005.

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Digitally signed by PRIYA PRIYA RAJESH RAJESH SOPARKAR SOPARKAR Date: 2023.12.16 15:16:52 +0530

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3. Learned counsel submits that therefore, as recorded in the earlier orders

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of this Court, this Court hear the Applicant and pass appropriate orders.

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4. Ms. Parasnis, learned counsel for the Applicant submits that the marriage
between the Applicant and the Respondent was solemnized at Parola on 28th
April, 2019 as per Hindu rites. That there is no child out of the wedlock. Learned
counsel submits that due to the ill-treatment of the Respondent and their family
members, the Applicant left the matrimonial home on 21st January, 2020.
Learned counsel submits that the Applicant has filed proceedings under the
domestic violence before the JMFC, Parola on 21st August, 2020 and a private
complaint before the same Court under 498A of the Cr.P.C. on 23rd December,
2020. That on 9th February, 2022, the Respondent-husband has filed divorce
proceedings before the Court of Civil Judge Senior Division, Kalyan. Learned
counsel submits that thereafter on 21st August, 2020 before a stay was granted
by this Court, the stage before the Kalyan Court was for evidence of the
Respondent-husband after the Applicant has filed written statement.

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5.Learned counsel submits that although the Applicant is a graduate but is
unemployed and totally dependent on her mother who is a pensioner, residing
with her. It is submitted that the Applicant has no means to travel to Kalyan nor
anyone to accompany her. That the distance from Jalgaon to Kalyan is 385.4
kms. and the distance from Jalgaon to Amalaner is 57 kms. and from
Amalaner to Parola is 22 kms. Learned counsel submits that to travel from

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Parola to Kalyan the Applicant has to travel by train and also to take a bus. That
in the event she does not get booking of the train, then that will entail great
hardship to her. Learned counsel submits that there are already two cases filed
by the Applicant in Parola, where the Respondent is attending. Therefore, it will
not only be inconvenient for the Applicant to travel from Parola to Kalyan but
also cause undue hardship to her. On the other hand, the Respondent is
graduate and earning a salary of Rs.1,00,000/- and therefore, the Respondent
can very well afford to travel to Amalaner, if the divorce petition is transferred
from Kalyan to Amalaner. Learned counsel submits that at the time of filing of
this application no interim maintenance was also directed to be paid to the
Applicant.

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6.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 Court of
Civil Judge Senior Division, Kalyan to the Court of Civil Judge Senior Division,
Amalaner.

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7. I have heard the learned counsel and also perused the application. The

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Respondent though served has chosen to remain unpresented and as such the 1 AIR 2022 SC 4318

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2 2005(12) SCC 237

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allegations and submissions made on behalf of the Applicant have gone
unchallenged.

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8. The Hon’ble Supreme court in the case of N.C.V. Aishwarya Vs. A.S. Saravana Karthik Sha (supra) has in paragraph 9 observed 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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9. In the case of Rajani Kishor Pardeshi Vs. Kishor Babulal Pardeshi (supra)

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the Hon’ble Apex Court has observed in paragraphs 3 and 4 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. The law of transfer of such matters is clear. Ergo it is the convenience of

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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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11.Applying the aforesaid principles to the facts of this case, I am of the
view that ends of justice would be met, if the divorce proceedings pending
before the Court at Kalyan are transferred to the Court of Civil Judge Senior
Division, Amalaner.

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12. The Application stands allowed in terms of prayer clause (a) which reads

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thus:-

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“This Hon’ble Court may be pleased to transfer Hindu
Marriage Petition (H.M.P.) 308/2022 filed by the Respondent
in the Court of Ld. C.J.S.D., Kalyan to the Ld. C.J.S.D.
Amalaner under Section 24 of the Code of Civil Procedure,
1908.”

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13.It is made clear that any observation(s) 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 observation(s).

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(ABHAY AHUJA, J.)

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Priya R. Soparkar

Mrs. Nanda Varsha Vinod Khairnar v. Vinod Devidas Khairnar

Case brief

What is this about?

What did the court decide?

Mrs. Nanda Varsha Vinod Khairnar v. Vinod Devidas Khairnar

Case brief

What is this about?

What did the court decide?

What the court decided

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