Aparna Nitin Kale Vs Nitin Masaji Kale

MCA 72 of 2023.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

MISCELLANEOUS CIVIL APPLICATION NO. 72 OF 2023

Aparna Nitin Kale…Applicant
Vs.
Nitin Masaji Kale… Respondent

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Mr. Shivraj Kunchage, Advocate for the Applicant.
Ms. Sheetal Mhatre, Advocate for the Respondent.

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CORAM : ABHAY AHUJA, J.
 RESERVED ON : 29 AUGUST, 2023.
PRONOUNCED ON : 06 SEPTEMBER, 2023.

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JUDGMENT:

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1. This application has been filed by the Applicant-wife under

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Section 24 of the Code of Civil Procedure, 1908 (CPC) seeking
transfer of the proceedings bearing Divorce Petition No. A-826 of
2019 filed by the Respondent-husband for dissolution of marriage
pending before the Learned Family Court, Court No. 5, Pune to the
Court of Learned Civil Judge Senior Division at Khed, Taluka-
Khed, District Pune.

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KSG 1/12

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MCA 72 of 2023.doc

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2.Mr. Shivraj Kunchage, learned counsel for the Applicant,
would submit that the marriage between the Applicant and the
Respondent was solemnized on 20th January 2017 at Govind
Garden, Someshwar Corner, Survey No. 17, Baner Road, Near
Rajwada Hotel, Pune as per Hindu rites and rituals. Out of the
said wedlock, the Applicant and Respondent had begotten one
daughter, who is now 5 years old.

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3.The learned counsel for the Applicant submits that after few
days of marriage, matrimonial differences arose between the
husband and wife. That, the Respondent and his family accused
the Applicant for each and everything and used offensive language
against her, made financial demands from the applicant’s family
and on being unable to pay the demanded amount, the
Respondent and his father beat/assaulted the Applicant and threw
the Applicant along with her daughter Trisha out of the
matrimonial home due to which she was forced to stay with her
parents at Village- Kalamb, Tal.- Ambegaon, Dist.- Pune.

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KSG 2/12

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MCA 72 of 2023.doc

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4.The learned counsel would submit that thereafter, the
Respondent-husband filed Divorce Petition bearing No. A-826 of
2019 before the Learned Family Court, Pune for dissolution of
marriage on the grounds of cruelty and has made various baseless
allegations on the Applicant. That, the Respondent, with a
malafide intention and ulterior motive to harass the Applicant and
her daughter, has filed one more application below Exhibit 37 in P.
A. No. 826 of 2019 for access to daughter Trisha. The learned
Court has allowed the said application vide order dated 23rd
January 2023 and passed the following order:-

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“1.The application Exh.37 is partly allowed.

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2. The petitioner-husband is permitted to meet the daughter Trisha on every 3 rd Saturday of every month from 11:OO am to 2:00 pm at Child Care Center, Family Court, Pune and for that pay the traveling expenses Rs.1000/- to the respondent-wife whenever will come to giving access.”

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5.The learned counsel for the Applicant would submit that the
Applicant is presently residing with her parents at Village Kalamb,
Taluka Ambegaon, District Pune and that she has no source of
income of her own. The learned counsel also submits that the
Applicant on every date of hearing before the learned Family

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KSG 3/12

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MCA 72 of 2023.doc

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Court at Pune has to travel from Kalamb to Pune along with her 5
year old daughter as there is no one at her parents’ home to take
care of the minor daughter. The Applicant is also required to take
care of her ailing parents. Learned Counsel submits that the health
of Applicant is also not good as she is emotionally depressed due
to the baseless allegations made by the Respondent in Divorce
Petition against her. The learned counsel submits that the distance
from Kalamb to Pune is around 80 kms one way and she does not
have anyone to accompany her during such travel. The learned
counsel for the Applicant would submit that it is causing huge
inconvenience to the Applicant to travel to Pune from Village
Kalamb to attend the Court proceedings. The learned counsel
would submit that therefore, it is not only inconvenient for the
Applicant to travel to Pune but also it is causing undue hardship to
her every time the matter is listed at Family Court, Pune. The
learned counsel would submit that the Applicant has filed an
Application under Section 125 of Code of Criminal Procedure
(Cr.P.C.) bearing Criminal Miscellaneous Application No. 70 of
2020 for maintenance before the learned Magistrate Court at

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KSG 4/12

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MCA 72 of 2023.doc

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Ghodegaon, Taluka Ambegaon, District Pune. That, Respondent
has several sources of income from different businesses and he
would have no difficulty in travelling to Khed. Therefore, learned
counsel for the Applicant urges this Court that the proceedings
bearing Divorce Petition No. A-826 of 2019 pending before the
learned Family Court, Court No. 5, Pune be transferred to the
Court of learned Civil Judge Senior Division at Khed, Taluka Khed,

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District Pune.

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6.In the reply filed to the application, the Respondent has
denied all of this. Ms. Sheetal Mhatre, learned counsel for the
Respondent husband, would submit that despite the Family Court
Counselor having made multiple efforts to amicably settle the
matter, the efforts have not borne any fruits till now. The learned
counsel submits that the Applicant always ill-treated the
Respondent and his family members and left the matrimonial
home on her own without any intimation or reason. It is further
submitted that the Applicant, during her stay at the matrimonial
home, demanded many things like money, flat etc. and upon not

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KSG 5/12

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MCA 72 of 2023.doc

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satisfying such demands, the Applicant would threaten the
Respondent that she would kill the daughter and commit suicide.
The Respondent, in the reply, has also stated that the applicant
used to visit her father’s house to perform black magic. Due to this
threat, Respondent was out of home from Pune for 5 days without
informing anyone. Therefore, the parents of the Respondent filed
a missing complaint. The learned counsel would further submit
that the Applicant was undergoing psychiatric treatment at J. J.
Hospital and the same is on record in the learned Family Court.
That Applicant has, after 8 months of the Divorce Petition being
filed at Family Court, Pune, filed FIR No. 76 of 2020 on 5th March
2020 under Section 498-A, 323, 504, 506 & 34 of the Indian
Penal Code, 1860 (IPC) at Manchar Police Station against the
Respondent, his father, his mother and his sister. The learned
counsel would submit that the Applicant has misused the
provisions of Section 498-A of the IPC only to harass and threaten
the family of the Respondent.

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7. The learned counsel for the Respondent would further

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KSG 6/12

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MCA 72 of 2023.doc

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submit that the order for maintenance under Section 125 of Cr.P.C.
dated 2nd December 2020 is passed by the learned Magistrate
Court, Ghodegaon wherein the learned Court has directed the
Respondent to pay the amount of Rs. 2,500/- as maintenance
towards the Applicant and Rs. 1,500/- towards the daughter. It is
further submitted that there has been no default at any time by
the Respondent in payment of the maintenance towards both the
Applicant as well as the daughter and the Respondent is also
taking care of the entire educational expenses of his daughter.
The learned counsel would submit that Applicant has completed
her Masters Degree post marriage with the financial assistance
from the Respondent and is a Qualified Teacher. The learned
counsel would further submit that the Applicant never followed
the order of visitation rights granted to the Respondent by order
dated 23rd January, 2023 passed by the learned Family Court
which directed the Applicant to give access of the daughter to the
Respondent. The learned Court, during the Covid-19 pandemic,
had allowed video – conferencing, however, the Applicant every
time avoided the call on some or other pretext and was never

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KSG 7/12

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MCA 72 of 2023.doc

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allowed to interact with his daughter. The Applicant also denied
the access to the Respondent on the daughter’s birthday. The
learned counsel would further submit that the travel distance from
the present place of residence of the Applicant to the Family Court
at Pune is less than 2 hrs of commute. Therefore, no hardship will
be caused to the Applicant to travel. Learned counsel would also
submit that the Respondent is ready and willing to pay the entire
travelling expenses in advance and will also bear the
accommodation expenses, if required. The learned counsel would
submit that the Applicants only purpose behind filing this
application is to delay the proceedings and to harass the
Respondent. Therefore, the learned counsel submits that this
application be dismissed.

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8.I have heard Mr. Shivraj Kunchage, learned counsel for
Applicant and Ms. Sheetal Mhatre, learned counsel for
Respondent at length and with their assistance also perused the
application and the reply and considered the rival contentions.

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KSG 8/12

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MCA 72 of 2023.doc

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9.This is a case where the marriage between the Applicant-
wife and the Respondent-husband was solemnized on 20th
January, 2017 as per Hindu rites and rituals. There are allegations
that after few days of marriage, the Respondent and his family
accused the applicant and used offensive language against her,
that the Respondent made financial demands from the Applicants
family, assaulted the Applicant and finally the applicant was asked
to leave the matrimonial home due to which she and her daughter
have been compelled to stay with her parents at Village-Kalamb,
Tal.- Ambegaon, Dist.- Pune.That the Respondent has denied the
above and submitted that the Respondent has herself left the
matrimonial home and has also threatened to kill herself and the
child therefore the Respondent-husband filed a Divorce Petition
bearing A-826 of 2019 for dissolution of marriage on the grounds
of cruelty at Family Court, Pune.

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10.It appears that the Applicant has no source of income of her
own as the Applicant is unemployed and dependent on her
parents for financial assistance. It also appears that the Applicant

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KSG 9/12

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MCA 72 of 2023.doc

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does not have anyone to accompany her from Kalamb when the
matter is listed at the Family Court, Pune which is at least 70 kms
from Kalamb. As noted above, it would also be inconvenient to
take her 5 year old school going daughter along with her during
every date of hearing when the matter is listed in Family Court
Pune. There would also be no one to look after her daughter if she
has to travel to Pune on every date. Besides the daughter needs to
be taken care of by mother if that is denied it would definitely
cause inconvenience and hardship to the Applicant. Therefore,
even if travelling and boarding/lodging expenses are paid for by
the husband, that would be immaterial considering the hardship
caused to the Applicant-wife. On the other hand, it appears that
the Respondent is financially sound and can afford travelling to
the court at Khed.

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11.It is settled law that while considering the application for
transfer under Section 24 of CPC filed by a wife, the convenience
of the wife and hardship caused to the wife has to be of
paramount consideration and wife’s hardship and inconvenience

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KSG 10/12

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MCA 72 of 2023.doc

¶49

has to be preferred over that of the husband.

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12.The Hon’ble Supreme Court in the case of N.C.V. Aishwarya
Vs. A.S. Saravana Karthik Sha, SCC Online SC 1199 (2022) has
highlighted this very aspect considering the Indian socio-economic
paradigm. 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
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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KSG 11/12

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MCA 72 of 2023.doc

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13.In the above circumstances the application deserves to be
allowed and is made absolute in terms of prayer clause (A) which
reads thus :-

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“That, this Hon’ble Court as per Section 24 of the
Civil Procedure Code r/w Rule 6 of Chapter I of the
Bombay Appeallate Side Rules, 1960 a/w Article 227
of Constitution of India, be pleased to transfer the
proceedings bearing Divorce Petition No. A-826/2019
pending before the Ld. Family Court, Court No. 5,
Pune to the file of Ld. Civil Judge, Senior Division at
Khed, Tal.- Khed, Dist.- Pune.”

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14.The application stands allowed in the above terms. Parties to
bear their own costs.

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15.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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KSG 12/12

Aparna Nitin Kale v. Nitin Masaji Kale

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Aparna Nitin Kale v. Nitin Masaji Kale

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