Husband sought transfer of wife's D.V. Act proceedings from Mulund Metropolitan Magistrate to the Bandra Family Court to be clubbed with his marriage petition, citing conflict of decisions. The court directed the husband to file an affidavit consenting to the wife's maintenance application and adjourned further hearing.
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907. MCA 183-2024.docx
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISC. CIVIL APPLICATION NO. 183 OF 2024
Nilesh Parakh
Versus
Prachi Parakh nee
Prachi Sawant w/o Nilesh Parakh & Ors.
.. Respondents
CORAM : MILIND N. JADHAV, J. DATE : SEPTEMBER 26, 2024
P. C.:
1. Heard Mr. Udaipuri, learned Advocate for Applicant and Mr.
Singh, learned Advocate for Respondents and with their able assistance, perused the pleadings in the present Misc. Civil Application (MCA).
2. Present MCA is filed by Applicant - husband seeking transfer of D.V. Act proceedings instituted by Respondent - wife in the Metropolitan Magistrate's 53rd Court at Mulund, Mumbai to be clubbed with and heard together with the Marriage Petition filed by Applicant - husband in the Family Court at Bandra.
3. Mr. Udaipuri would submit that in order to avoid conflict of
decisions and in view of the fact that both the proceedings would have issues which would be interdependent on each other and therefore to
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avoid different trials, the Application has been made under Section 24 of the CPA and the Applicant invokes power of this Court under Section 24. He would also submit that in the Marriage Petition filed by Applicant in the Family Court at Bandra, yesterday Respondent has filed Application seeking maintenance for the minor girl child. There is a minor girl who would be four years old in November this year who is residing with Respondent - wife. Respondent is required to provide care and support to her. It is also an admitted fact that Respondent is having employment and job in Mumbai. Mr. Udaipuri would submit that Applicant would partially concede to the relief prayed for in the maintenance Application filed by Respondent in the interregnum without objecting to or opposing the same. This submission of Mr. Udaipuri after taking instructions from the Advocate on record for Applicant - husband has been made for the first time in Court according to Mr. Singh.
4. Per contra, Mr. Singh, learned Advocate for Respondent - wife would at the outset submit that the submission for conceding the Application for maintenance on behalf of Applicant husband should be placed on affidavit alongwith the maintenance amount that would be agreed. On the issue of merits of transfer, Mr. Singh would draw my attention to the decision passed by this Court in the case of Anurag
Agarwal Vs. Poonam Agarwal nee Mukim1 (Coram : Arun R. Pednekar, 1 Misc. Civil Application No. 159 of 2023 dated 09.07.2024
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J.) and would submit that in view of that decision, Respondent - wife be permitted to continue with D.V. Act proceedings in the Metropolitan Magistrate Court at Mulund. To fortify the aforesaid submissions, he would address certain factual submissions and would submit that Respondent - wife is presently residing in Bhandup and it would be convenient for her to attend the D.V. Act proceedings in Mulund which is at a distance of approximately 4 to 5 kms. only rather than travel all the way to the Family Court at Bandra. He would submit that since the minor girl child is now required to be provided care and support and also her education by Respondent, Respondent has decided to shift her place of job from Dadar to Vikhroli, so that she would be in a better position to provide support to her daughter. Next he would submit that parents of Respondent - wife are residing near her residence in Bhandup and they are giving her moral as well as other necessary support during this stage. Apart from the factual submissions, Mr. Singh would submit that there are various decisions of the Supreme Court as also various High Courts which would enure to the benefit of Respondent on the issue of the wife having no bar to file proceedings seeking maintenance or D.V. Act proceedings under the various provisions in the Court / Forum of her choice. He would submit that through his Court has adequately dealt with the aforesaid situation in the case of Khanjan Hitendra Jasani Vs. Krupali Khanjan Jasani &
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Anr.2 subsequent to passing of the order in the case of Anurag Agarwal (first supra) but would submit that concept of conflict of decisions of two different Courts should not be applied to the case of Respondent wife in the present case.
5. After hearing both the learned Advocates and the request made by Mr. Singh calling upon the Applicant to place on affidavit his consent to the maintenance Application, I would direct the Applicant to file an appropriate affidavit within a period of one week from today to that effect delineating his consent and agreement for the Application for maintenance sought for by Respondent before the Family Court, in order to have solace to the Respondent who is required to provide care and support for her minor child. In so far as the submissions advanced by Mr. Singh with respect to choice of the Court by Respondent - wife is concerned, subject to the aforesaid affidavit filed by Applicant, I shall consider the same and pass appropriate orders in the present MCA on the next adjourned date. I put both the parties to notice that in the case of Khanjan Jasani (second supra) decided by me, I have dealt with identical submission as advanced by Mr. Singh and have given my imprimatur as to why the said submission cannot be considered by referring to decisions of the
Supreme Court and this Court. Both parties shall consider the
2 Misc. Civil Application No. 58 of 2024 decided on 04.09.2024
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aforesaid judgments and make their further submissions on the next adjourned date.
6. Stand over to 04.10.2024. In the meanwhile, ad-interim relief,
Amberkar
[ MILIND N. JADHAV, J. ]
Digitally signed RAVINDRAMOHANAMBERKAR by RAVINDRAMOHANAMBERKARDate:2024.09.27 11:16:32 +0530
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1 issue framed by the court
Should the wife's D.V. Act proceedings at Mulund be transferred to the Family Court at Bandra to be heard with the husband's Marriage Petition?
Colour shows how this judgement treated each authority
Anurag Agarwal Vs. Poonam Agarwal nee MukimReferred
Misc. Civil Application No. 159 of 2023 dated 09.07.2024
Khanjan Hitendra Jasani Vs. Krupali Khanjan Jasani & Anr.Referred
Misc. Civil Application No. 58 of 2024 decided on 04.09.2024
1 provisions across 1 enactments
Nilesh Parakh
Prachi Parakh nee Prachi Sawant w/o Nilesh Parakh
Ors.
Milind N. Jadhav
As recorded by the court registry
15 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
