Smt. Charul Kamal Lodya Vs Mr. Kamal Kishorbhai Lodya

2023:BHC-AS:25768

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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MISCELLANEOUS CIVIL APPLICATION NO.511 OF 2022

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Ms. Charul Kamal Lodya… Applicant
Vs.

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Mr. Kamal Kishorbhai Lodya… Respondent

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Mr.Omprakash Pandey with Ms.Suchita Pandey and Mr.Rahul Pandey,
Advocates for the Applicant.
Mr.V.S.Tadke i/by Mr.Mohan Gawade, Advocates for the Respondent.

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CORAM :ABHAY AHUJA, J.
DATE :01 SEPTEMBER, 2023.

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P.C.:

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1. When the matter is called out, learned Sheristedar points out that there

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is a sealed cover. The sealed cover is opened. The mediation report dated 6th
March, 2023 is perused. The report indicates that the mediation has failed. The
report is shared with the learned counsel and after their perusal it is taken on
record and marked “X” for the purposes of identification.

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2.Ms.Suchita Pandey, learned counsel for the Applicant seeks to keep back
the matter stating that her senior is in another court. However, learned counsel
for the Respondent submits that since the mediation has filed, the objection as to

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maintainability of the application that was raised by him on the earlier occasion
would need to be considered by this court. Learned counsel submits that in view

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of section 23(3) of the Code of Civil Procedure 1908, since the Amravati Court
comes within the local limits of the Nagpur Bench and therefore the application
ought to have been filed in Nagpur and not before this Bench.

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3. A perusal of Section 23(3) of the Code of Civil Procedure indicates that
where there are courts having jurisdiction subordinate to different High Courts,
the application for transfer would lie to the High Court within the the local
limits of whose jurisdiction the court in which the suit is brought is situate.

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4.The divorce petition has been filed by the Respondent-husband before the
Civil Judge Senior Division at Amravati. No doubt the said court falls within the
local limits of the Nagpur Bench of this Court, however, the said section 23(3)
applies to a situation where the subordinate courts are subordinate to different
High Courts. The Nagpur Bench is not a different High Court in accordance with
section 23(3) of the Code of Civil Procedure, 1908. Therefore, to my mind the
objection raised by the learned counsel for the Respondent under this
provision cannot be sustained and is rejected.

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5. At this stage, learned counsel for the Respondent submits that if that be so, this court may hear the miscellaneous application.

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6.Since Mr.Omprakash Pandey, learned counsel for the Applicant was in
another court as mentioned above, this matter was kept back.

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7.In the afternoon session, the matter is called out. Mr.Omprakash Pandey,
learned counsel appears for the Applicant and submits that although the matter
has been referred to mediation, the same as recorded in the report of the
Mediator has failed though his client would still want to cohabit with the
Respondent.

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8.Coming to the merits of the Miscellaneous Civil Application, learned
counsel for the Applicant submits that the Applicant and the Respondent were
married on 29th May, 2009 at Dhamangaon which is close to Amravati as per
Hindu Vedic Rites and in the year 2011 they were blessed with a boy. Learned
counsel would submit that since the beginning of the marriage, the Applicant
had been ill-treated and tortured by the Respondent and his family, mentally
and emotionally and also subjected to the verbal abuse. Learned counsel submits
that in the year 2013, the husband of the aunt of the Respondent had a heart
attack and in front of the relatives, the Applicant was abused and blamed for the
heart-attack as being unlucky for them. Learned counsel submits that when the
father of the Applicant came to visit the matrimonial home of the Applicant to
see the uncle of the Respondent, then Respondent and the aunt told the father of
the Applicant to take the Applicant back with him alongwith the son stating that

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the son is getting ignored as the uncle’s health is not good and the Respondent
assured the father of the Applicant that once the health of the uncle will get
better, then the Respondent will come and take the Applicant and the minor son
back.It is submitted that since then the Applicant and the son have been
waiting for the Respondent to take them back and at many times the
Respondent has been seeking time. In the year 2015, the health of the uncle
deteriorated and he got hospitalized in Mumbai for his treatment and the
Applicant once again requested the Respondent and the aunt to take them back
but the same did not happen. Mr.Pandey, learned counsel for the Applicant
would submit that therefore in the year 2016, the Applicant filed the
proceedings under section 12 of the Domestic Violence Act in the Vikhroli Court.
Thereafter, in the year 2019 the Applicant was surprised to receive a notice with
respect to the divorce petition that had been filed by the Respondent before the
Court of Civil Judge at Amravati seeking divorce from the Applicant. Since the
Applicant wanted to stay with the Respondent, the Applicant instituted a
proceeding for restitution of conjugal rights in the year 2022 in the Family Court
at Bandra. Mr.Pandey would submit that in the proceedings before the Court at
Amravati, the written statement has been filed on behalf of the Applicant-wife
and in the proceedings for restitution of the conjugal rights at Bandra, mediation
is going on. Mr.Pandey would submit that the proceedings before the Amravati
Court are now listed on 29th September, 2023, the domestic violence
proceedings in the Vikhroli Court are listed on 12th September, 2023 and the

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proceedings before the Bandra Court are scheduled to be listed on 29th October,
2023.

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9.Learned counsel submits that the Applicant has been deserted by her
husband and therefore the Applicant is residing at Mumbai with her minor son
who is about 12 years and studying in 5th standard. He would submit that being
a mother and natural guardian, she is duty bound to get the child ready to go to
school and also to leave the child at school and thereafter, to collect the child
from school day to day. He also states that Applicant is also duty bound to take
the child day to day for tuitions in the morning at 09.00 a.m. and collect him at
11.00 a.m. and thereafter, taking the child to school at 12.45 p.m. and collecting
the child from school at 5.30 p.m. every day and as such, if she has to travel to
Amravati on the date on which the matter is listed, then considering her time
bound duty of care to her son, it would not only be inconvenient but also cause
undue hardship to her as well as her minor son. Learned counsel submits that
the distance between Amravati and Mumbai is 631 kilometers one way and it
takes more than 12 hours to reach there. He would submit that the Applicant is
working as a sales-woman, staying with her father at Ghatkopar and as a sales-
woman in a garment shop, she earns only Rs.6,000/- per month in addition to
Rs.4,000/- that has been awarded as interim maintenance by the Domestic
Violence Court as maintenance for the son and therefore, she would not be in a
position to afford the travel or the hotel charges, if she has to visit Amravati.

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Mr.Pandey, learned counsel would submit that on the other hand no such
hardship would be caused to the Respondent-husband if he has to travel from
Amravati to Mumbai as in any case he is travelling for the purpose of Domestic
Violence proceedings and he is also well to do as he is a businessman who owns
agricultural land as well as has construction business and therefore, no such
hardship would be caused to him, if he has to travel to the Family Court at
Bandra. Learned counsel would also submit that in any event, if the two
proceedings, one for divorce and other for restitution of conjugal rights are tried
by two courts, then there is possibility of two contrary views on the same set of
facts and issues and it would be in the interests of justice that both the
proceedings be tried by the same court at Bandra. He therefore requests this
court that the Marriage Petition No.26 of 2019 pending in the Court of Civil
Judge, Senior Division, Amravati be transferred to the Family Court at Bandra
and Marriage Petition No.26 of 2019 and M.J. Petition No.2434 of 2022 be
clubbed and tried by the Family Court, Bandra.

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10.On the other hand, Mr.Tadke, learned counsel for the Respondent -
husband would submit that the proceedings for restitution of conjugal rights are
already pending before the Family Court at Bandra. In order to avoid conflicting
verdicts, it would be appropriate that the divorce petition is clubbed with the
petition for restitution of conjugal rights and heard together. Learned counsel
therefore submits that this court may pass appropriate orders.

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11.I have heard learned counsel for the Applicant as well as Respondent and
considered the rival contentions.

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12.It is settled law that while considering the transfer petition in section 24
of the Code of Civil Procedure, 1908, the convenience and hardship caused to
the wife is of paramount consideration.

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13.The Hon’ble Supreme Court in the case of N.C.V. Aishwarya Vs. A.S.
Saravana Karthik Sha1 has clearly observed that while considering transfer, it is
the convenience of the wife that has to be considered. Paragraph No.9 of the
said decision is 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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14. The wife is residing in Mumbai after having been allegedly deserted by

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1 SCC Online SC 1199 (2022)

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her husband along with her 12 years school going child whom she has to look
after as detailed in the facts above. Her source of income has mentioned by the
learned counsel for the Applicant also appears to be meagre; the distance
between Mumbai and Amravati is 631 kms one way. She is residing with her
father; while having to look after a school going child, his daily needs as well as
attending to her job, in my view travelling to Amravati every time the matter is
listed there, would not only cause inconvenience but also undue hardship.

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15.Learned counsel for the Respondent has also accepted the argument of
the learned counsel for the Applicant that the same set of facts viz. in the
restitution proceedings and in the divorce proceedings if adjudicated by two
different courts could lead to conflicting decisions and in order to avoid the
same, it would be desirable that the two matters are clubbed together and heard
together.

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16.Ergo, having heard learned counsel and having considered the law on
subject, in view of the above discussion, this court is of the view that ends of
justice would be met if the Marriage Petition No.26 of 2019 filed by the
Respondent-husband before the Court of Civil Judge, Senior Division at
Amravati is transferred to the Family Court at Bandra and both the petitions i.e.
Marriage Petition No.26 of 2019 and M.J.Petition No.2434 of 2022 filed by the
wife at Family Court, Bandra for restitution of conjugal rights are clubbed and

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heard together.

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17. The application is allowed and made absolute in terms of prayer clause (a). The parties to bear their own costs.

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18.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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Smt. Charul Kamal Lodya v. Mr. Kamal Kishorbhai Lodya

Case brief

What is this about?

What did the court decide?

Smt. Charul Kamal Lodya v. Mr. Kamal Kishorbhai Lodya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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