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H vs Complex, Kalamboli – 410 218 on 10 July, 2012

Bombay High Court H vs Complex, Kalamboli – 410 218 on 10 July, 2012Bench: S. S. Shinde

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD.

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CIVIL APPELLATE JURISDICTION

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MISCELLANEOUS CIVIL APPLICATION NO. 13 OF 2012 C

Mrs. Shreya w/o Prashant Agale,

Age : 27 years, Occupation : Advocate, C/o Adv. D.S.Khamat,

R/o 54, “Jogeshwari” Sector – L, h

N – 11, CIDCO, New Aurangabad – 431 003. … APPLICANT ig

V E R S U S

H

Prashant s/o Prakash Agale,

Age: 29 years, Occupation, Chartered Accountant,

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Residing at : G-72, 0:2, Ashish Housing Co-op. Society Ltd., Section – 6, ba

Kalamboli 418 218. Taluka Panvel, District Raigad.

Office at : 2112, ‘D’ Wing, BIMA Office om

Complex, Kalamboli – 410 218,

Taluka Panvel, District Raigad. … RESPONDENT —–

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Mr. Sadanand S. Deve, Advocate for the Applicant. Mr. Chitrao A. Gore, Advocate for the Respondent. —–

CORAM : S.S.SHINDE, J.

10 July, 2012.

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DATE :

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ORAL JUDGMENT:

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1 Rule. Rule made returnable forthwith. Heard finally with ou

the consent of the parties.

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2 This miscellaneous civil application is filed seeking transfer of divorce proceedings in Hindu Marriage Petition No.8 of 2011 pending h

before the Civil Judge (Senior Division), Panvel, Taluka Panvel, District ig

Raigad to any competent Court at Aurangabad. H

3 Background facts of the case as disclosed in the application are as under:

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On 1 July, 2009, marriage between the Applicant and Respondent solemnized at Aurangabad. It is the case of the om

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Applicant that, on 19 July, 2009, there was an illegal demand of Rs. 10,00,000/- by the Respondent to the Applicant and her parents for B

purchasing or expanding his office at Kalamboli. On failure of payment of Rs.10,00,000/-, the Respondent and his parents started harassing the Applicant. It is further case of the Applicant that, on denial by the Applicant of any kind of written consent for divorce, the Applicant was ::: Downloaded on – 09/06/2013 18:48:09 ::: 3

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thrown out of her matrimonial home in wearing clothes on 30 April, rt

2010 about 01:15 am.

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The Applicant stayed with the Respondent from st th

1 July, 2009 to 30 April, 2010. Thereafter, the Applicant is living at the C

kind mercy of her parents at Aurangabad. It is further case of the h

Applicant that, the Respondent did not respond calls, mails, SMSs of ig

the Applicant and the parents of the Respondent were calling the th

Applicant and pressuring her to give divorce. On 26 June, 2011, the H

Applicant, her parents, relative and family friends went to the y

Respondent for clarifying his misunderstanding. But, the father of the ba

Respondent denied access to the Applicant and the Respondent th

refused to cohabit anymore with the Applicant. On 26 June, 2011, the om

Applicant visited to Kalamboli Police Station but settlement could not be done.

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On 3 July, 2011, First Information Report No.348 of 2011 was registered against the Respondent, his parents and the family friends for the offences punishable under Sections 498A, 406 ::: Downloaded on – 09/06/2013 18:48:09 ::: 4

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and 504 of the Indian Penal Code. The Judicial Magistrate First-Class, rt

Panvel granted two days of Police Custody Remand and later on the ou

Respondent was released on bail. During the Police Custody Remand, the Respondent and his parents have surrendered eight tolas of gold C

ornaments out of 22 tolas of gold ornaments forcibly retained by them. h

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4 On 22 July, 2011, the Applicant herein filed Criminal ig

Miscellaneous Application No.1106 of 2011 under Sections 12, 18, 19, H

20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial Magistrate First-Class, at Aurangabad. y

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5 On 22 July, 2011, another Petition No.E-153 of 2011 under Section 125 of the Criminal Procedure Code is filed by the Applicant om

before the Family Court, at Aurangabad. It is further case of the Applicant that, from the Respondent’s say in Criminal Miscellaneous B

Application no.1106 of 201 and written statement in Petition No.E-153 of 2011, it revealed that, the Respondent has filed divorce proceedings i.e. Hindu Marriage Petition No.8 of 2011 before the Civil Judge (Senior Division), at Panvel, Taluka Panvel, District Raigad. Till this date, there ::: Downloaded on – 09/06/2013 18:48:09 ::: 5

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was no notice of service on the Applicant and the Applicant sou moto rt

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appeared in the divorce proceedings on 3 December, 2011. ou

6 It is the case of the Applicant that, as she is residing at C

Aurangabad with her parents, it is inconvenient and difficult to her to attend the proceedings in Hindu Marriage Petition No.8 of 2011 at h

Panvel Court. Therefore, this application is filed for transfer of the ig

divorce proceedings from Panvel Court to Aurangabad Court. H

7 The learned counsel for the Applicant invited my attention to the pleadings in the application, annexures thereto and also the y

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rejoinder affidavit and submitted that, two different proceedings instituted by the Applicant are pending at Aurangabad. The Respondent om

has attended those proceedings and therefore, there is no reason, why the Respondent cannot attend the divorce proceedings, if those are B

transferred to Aurangabad from Panvel. It is submitted that, from the th

day of desertion i.e. 30 April, 2010, the Applicant is residing with her father at Aurangabad. It is further submitted that, the Respondent and also the family members of the Respondent are threatening to the ::: Downloaded on – 09/06/2013 18:48:09 ::: 6

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Applicant. There is every danger to her life, if she travels to Mumbai for rt

attending the proceedings pending before the Civil Judge (Senior ou

Division), at Panvel. The leaned counsel also invited my attention to the averments made in the rejoinder affidavit and submitted that, the C

Applicant is panel Advocate of the Abhyudaya Co-operative Bank h

Limited, Mumbai, however, she is not appointed in any particular pay- ig

scale and only some cases are assigned to her. Earlier she used to reside with her sister, who was at Mumbai. However, since her sister H

went abroad for job, there is no any accommodation for the Applicant to y

stay at Mumbai. Therefore, relying upon the grounds taken in the ba

application, annexures thereto and the contentions raised in the rejoinder affidavit, the learned counsel for the Applicant would submit om

that, this miscellaneous civil application deserves to be allowed. The learned counsel for the Applicant pressed into B

service the exposition of the Supreme Court in the case of Sumita Singh Vs. Kumar Sanjay, [ 2001 (10) SCC 41 ] and in particular paragraph No.3 of the said judgment and submitted that, it is the ::: Downloaded on – 09/06/2013 18:48:09 ::: 7

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husband’s suit against the wife, which is pending at Panvel and the rt

wife’s convenience should be looked into by the Court. The distance is ou

also about 400 kilometers from Aurangabad to Panvel. Therefore, the learned counsel for the Applicant prays that, this application may be C

allowed.

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8 On the other hand, the learned counsel for the Respondent ig

invited my attention to the affidavit in reply filed on behalf of the H

Respondent. It is submitted that, the Applicant has suppressed material facts and the Applicant has come with false case before this Court with y

ulterior oblique motive and only with a view of malafide intention to ba

harass the Respondent and his parents. In paragraph No.4 of the om

affidavit in reply, it is submitted by the Respondent that, prior to filing this miscellaneous civil application, the Respondent has filed proceedings B

bearing Miscellaneous Criminal Application No.113 of 2012, before the principal seat of this Court for transfer of proceedings from Aurangabad to Panvel Court, but the Applicant only with a view to counter blast the Miscellaneous Criminal Application No.113 of 2012, has filed the present ::: Downloaded on – 09/06/2013 18:48:09 ::: 8

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miscellaneous civil application by suppressing the material facts and rt

therefore, on that ground alone, this application deserves to be rejected. ou

In support of the contention that, if such application is filed with suppression of certain material facts or information, the proceedings are C

required to be rejected, the learned counsel for the Respondent pressed h

into service the reported judgment of the Supreme Court in the case of ig

Oswal Fats and Oils Ltd. Vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and ors, [ 2010 (4) SCC 728 ], and in particular H

paragraph Nos.9, 15, 16 and 19 of the said judgment. y

The learned counsel further submitted that, the ba

Applicant is practicing Advocate at Mumbai and she is panel Advocate of Abhyudaya Co-operative Bank Limited, Mumbai. Perusal of the om

T.D.S. certificate would make it clear that, the said Bank has deducted her T.D.S. for the year 2010-2011 and 2011-2012. The learned counsel B

also invited my attention to paragraph Nos.5 and 6 of the affidavit in reply and submitted that, the Applicant is trying to impress the office of the said Bank and also the Income Tax Authority not to disclose certain ::: Downloaded on – 09/06/2013 18:48:09 ::: 9

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information about deduction of T.D.S. It is submitted that, the rt

application filed by the Applicant for interim maintenance was rejected. ou

It is the submission of the learned counsel for the Respondent that, in the said application also, the Applicant has suppressed the material C

facts. It is submitted that, the Applicant is not a layman, but is an h

advocate by profession, who is well conversant with all the provisions of ig

law. He further submitted that, the Applicant has tried to suppress the fact of her professional income. She has also intimated her Bank of not H

disclosing her income received from her profession to the Respondent y

or his parents. It is submitted that, previous complaints are filed by the ba

Applicant, to harass the Respondent and also his parents. It is submitted that, the Respondent is residing at Panvel with his parents, om

who is their only son, and his parents are ailing, he has to look after the health of his parents, any transfer of the proceedings from Panvel to B

Aurangabad will cause great prejudice to the Respondent. The learned counsel also invited my attention to paragraph Nos.9, 10 and 11 of the affidavit in reply and submitted that, this miscellaneous civil application ::: Downloaded on – 09/06/2013 18:48:09 ::: 10

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for transfer of the proceedings deserves to be rejected. rt

9 I have given due consideration to the rival submissions. ou

With the able assistance of the learned counsels appearing for the C

parties, I have perused the grounds taken in the application, annexures thereto, affidavit filed by the Respondent and also further rejoinder h

affidavit filed by the Applicant. It is not in dispute that, the Applicant ig

herein has filed Criminal Miscellaneous Application No.1106 of 2011 H

under Sections 12, 18, 19, 20, 22 and 23 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial Magistrate First- y

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Class, at Aurangabad on 22 July, 2011 and those proceedings are ba

pending before the said Court. The Applicant herein has also filed om

proceedings being Petition No.E-153 of 2011 under Section 125 of the Criminal Procedure Code, which are also pending before the Family B

Court, at Aurangabad. It is also not in dispute that, those proceedings are filed by the Applicant before filing the petition for divorce by the Respondent at Panvel. It is also not in dispute that, the Respondent has personally attended the proceedings in Criminal Miscellaneous ::: Downloaded on – 09/06/2013 18:48:09 ::: 11

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Application No.1106 of 2011 and also in Petition No.E-153 of 2011 at rt

Aurangabad. Therefore, the Respondent is already attending the said ou

proceedings, which are pending before the competent Courts at Aurangabad. It is true that, the Respondent has filed the application for C

transfer of those proceedings from Aurangabad to Mumbai, however, h

said application is yet pending at principal seat of this Court at Bombay, ig

however, the Respondent has not invited any order staying aforesaid proceedings, which are pending before the competent Courts at H

Aurangabad.

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10 I find considerable force in the contention raised by the ba

learned counsel for the Applicant that, the Respondent has filed Hindu om

Marriage Petition No.8 of 2011, which is pending before the Civil Judge (Senior Division), Panvel, Taluka Panvel, District Raigad, however, B

atleast on last two to three dates fixed by the said Court, the Respondent herein did not attend those proceedings, though instituted by him. Therefore, in my opinion, if the proceedings are filed by the Respondent, he was bound to attend the said proceedings and mere ::: Downloaded on – 09/06/2013 18:48:09 ::: 12

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filing of those proceedings and not attending the same, would certainly rt

cause inconvenience to other side and in the present case to the ou

Applicant. Thought the learned counsel for the Respondent strenuously contended that, the Applicant is panel Advocate of the Abhyudaya Co- C

operative Bank Limited, Mumbai and therefore, she is staying at h

Mumbai and there is no inconvenience to attend the proceedings in ig

Hindu Marriage Petition No.8 of 2011 instituted by the Respondent, which are pending at Panvel Court, however, the facts remain that, if H

really the Applicant is permanently staying at Mumbai, in that case, she y

should not have filed two proceedings i.e. Criminal Miscellaneous ba

Application No.1106 of 2011 and Petition No.E-153 of 2011 at Aurangabad. It is not in dispute that, the parents of the Applicant are om

staying at Aurangabad. It is also relevant to make mention of the fact that, when the Applicant worked at Mumbai including to attend the B

cases assigned by the Abhyudaya Co-operative Bank Limited, she used to stay with her sister. However, now, the sister of the Applicant went abroad and not staying in Mumbai, therefore, the Applicant has no any ::: Downloaded on – 09/06/2013 18:48:09 ::: 13

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residential premises or accommodation to stay at Mumbai. Though, the rt

learned counsel for the Respondent was at pains to argue that, the facts ou

which are stated in the rejoinder affidavit are not true, nothing contra has been brought on record to counter those statements made in the C

rejoinder affidavit. Therefore, in absence of any contra material brought h

on record, the averments made in the said rejoinder affidavit will have to ig

be accepted. The Respondent is not able to bring to the notice of this Court that, the Applicant has any permanent resident at Mumbai and H

she can conveniently attend the divorce proceedings pending before the y

Civil Judge (Senior Division), at Panvel. May be the Applicant is panel ba

Advocate of the Abhyudaya Co-operative Bank Limited, Mumbai, however, it is not the case of the Respondent that, the Applicant is om

appointed as regular law officer in a particular pay-scale and she is a salaried employee of the said Abhyudaya Co-operative Bank Limited, B

Mumbai. Merely because the Applicant on couple of occasions had attended the Court proceedings at Mumbai as a lawyer, would not necessarily lead to the conclusion that, it is convenient for her to attend ::: Downloaded on – 09/06/2013 18:48:09 ::: 14

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the proceedings pending before the Court at Panvel. At the cost of rt

repetition, it has to be observed that, if it was convenient for the ou

Applicant to stay at Mumbai and prosecute the proceedings, in that case, she should have instituted the criminal as well as the civil C

proceedings against the Respondents at Mumbai. The fact that, she h

has instituted two proceedings at Aurangabad, that itself indicates that, ig

attending the proceedings in the Court at Aurangabad is convenient to the Applicant since her parents are staying at Aurangabad. Apart from H

above, the allegations made against the Respondent by the Applicant – y

wife that, there are threats extended by the Respondent and his parents ba

to the Applicant, remained uncontroverted. That apart, there are other allegations as well made by the Applicant in the application and during om

the oral submissions by the learned counsel for the Applicant, however, this Court does not think it necessary to elaborate the same any further. B

Suffice it to observe that, it will be convenient for the Applicant to attend the divorce proceedings, if the proceedings in Hindu Marriage Petition No.8 of 2011 pending before the Civil Judge (Senior Division), Panvel, ::: Downloaded on – 09/06/2013 18:48:09 ::: 15

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Taluka Panvel, District Raigad are transferred from the said Court to the rt

Family Court, at Aurangabad. As stated earlier, the Petition No.E-153 of ou

2011 is pending before the Family Court, at Aurangabad where the Respondent is attending those proceedings. The Respondent will be at C

liberty to apply to the Family Court, at Aurangabad to have hearing of h

Petition No.E-153 of 2011 and on transfer, the hearing of Hindu Marriage ig

Petition No.8 of 2011 on the same day. The learned counsel for the Applicant has rightly H

pressed into service the reported judgment of the Supreme Court in the y

case of Sumita Singh (supra), in paragraph No.3 of the said judgment, ba

the Supreme Court held that, it is the husband’s suit against the wife. It is the wife’s convenience that, therefore, must be looked at. In the om

present case, the circumstances indicated hereinabove, are sufficient to make the transfer petition absolute. B

11 For the reasons aforesaid, Hindu Marriage Petition No.8 of 2011 pending before the Civil Judge (Senior Division), Panvel, Taluka Panvel, District Raigad stands transfered to the Family Court, at ::: Downloaded on – 09/06/2013 18:48:09 ::: 16

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Aurangabad. The concerned Court to take steps to transfer all the rt

papers including the record in Hindu Marriage Petition No.8 of 2011 to ou

the the Family Court, at Aurangabad within a period of one week from the date of receipt of this order. C

12 Rule is made absolute on above terms. The miscellaneous h

civil application stands disposed of. ig

13 It is needless to mention that, the proceedings being H

matrimonial proceedings, the Family Court, Aurangabad on transfer, should decide Hindu Marriage Petition No.8 of 2011 as expeditiously as y

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possible, however, within six months from the first date of hearing, which will be fixed by the Family Court, Aurangabad. om

[ S.S. SHINDE, J ]

ndm

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