Mrs. Vanita Manish Shelake Alias Vanita Motiram Gurakhe vs State of Maharashtra

section 24 of the Code of Civil Procedure, 1908 for transfer of Marriage Petition No. 286 of 2023 from the file of Family Court, Kolhapur to the Family Court at Bandra, Mumbai.

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The marriage of the applicant was solemnized with the respondent No.2 on 29^th May, 2018. They were blessed with a son, on 5^th April, 2019. In the wake of matrimonial discord, the applicant was compelled to leave the matrimonial home and take shelter at her parental home. The applicant has filed Marriage Petition No A- 854 of 2024 in the Family Court at Bandra. The respondent No. 2 filed a petition for restitution of conjugal rights, being Petition No. 286 of 2023, before the Family Court at Kolhapur.

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Kolhapur is at a considerable distance from Mumbai. The

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Vishal Parekar, PS

44-mca-277-2024.doc

applicant is residing along with her son at Mumbai and they are dependent upon the applicant’s mother. The applicant has no independent source of income. It would be extremely inconvenient and onerous for the applicant to attend the proceeding before the Family Court at Kolhapur.

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Notice has been served on respondent No. 2. An affidavit of service has been filed. Respondent No. 2 chose not to appear. 6. The averments in the application have gone untraversed. In any event, the distance between Mumabi and Kolhapur is prohibitive. It does not appear that the applicant has logistical and financial support to effectively defend the proceeding before the Family Court at Kolhapur. It is trite in the matter of transfer of matrimonial proceeding, the convenience of the wife commands precedence.

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Moreover, since the applicant has also instituted a petition before the Family Court at Mumbai, it would also be expedient in the interest of justice that both the marriage petitions are heard and decided by the same Court.

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The principles which govern the exercise of power under Section 24 of the Code, especially in the matters arising out of matrimonial proceedings, were expounded by the Supreme Court in

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Vishal Parekar, PS

44-mca-277-2024.doc

the case of N.C.V. Aishwarya Vs A.S. Saravana Karthik Sha¹ in the

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following terms:

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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 life. 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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Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.”

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The aforesaid pronouncement is on all four with the facts of

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the case at hand.

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Hence, the following order.

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ORDER

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1] Application stands allowed in terms of prayer clause (c).

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2] Marriage Petition No. 286 of 2023 stands transferred from the Family Court at Kolhapur to the Family Court at Bandra, Mumbai for hearing and disposal in accordance with law.

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3] The learned Judge, Family Court, Kolhapur shall transfer the record and proceedings in Marriage Petition No. 286 of 2023 with such dispatch that it reaches the Family Court at

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1 2022 LiveLaw (SC) 627

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Vishal Parekar, PS

44-mca-277-2024.doc

Bandra, Mumbai within a period of four weeks from the date of communication of this order.

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4] The learned Judge, Family Court at Bandra shall try and decide both the Marriage Petition No. 286 of 2023 and Marriage Petition No A-854 of 2024, together.

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Application disposed.

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(N. J. JAMADAR, J.)

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Vishal Parekar, PS

Mrs. Vanita Manish Shelake Alias Vanita Motiram Gurakhe v. State of Maharashtra

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Mrs. Vanita Manish Shelake Alias Vanita Motiram Gurakhe v. State of Maharashtra

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