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Harshada Omkar Dahiwadikar vs Omkar Sanad Dahiwadikar on 27 September, 2023

2023:BHC-AS:28648

5-MCA-171-2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

MISCELLANEOUS CIVIL APPLICATION NO.171 OF 2022

MRS.HARSHADA OMKAR DAHIWADIKAR )…APPLICANT

V/s.

MR.OMKAR SANAD DAHIWADIKAR )…RESPONDENT

Mr.Abhay Parab a/w. Mr.Digvijay Rane, Advocate for the Applicant.
None for the Respondent.

CORAM : ABHAY AHUJA, J.

DATE : 27th SEPTEMBER 2023

P.C. :

1. By this Application filed under Section 24 of the Code of Civil

Procedure, 1908, the Applicant-wife is seeking transfer of the

proceedings for restitution of conjugal rights filed by the Respondent-

husband before the Civil Judge Senior Division at Vaduj, Satara, to the

Court at Vasai.

2. Mr.Abhay Parab, learned Counsel for the Applicant-wife, would

submit that although the service has been effected on the Respondent-

husband, however, the Respondent-husband is neither present nor

represented.

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5-MCA-171-2022.doc

3. Learned Counsel would point out that the marriage between the

Applicant-wife and the Respondent-husband was solemnized at Pune

on 6th December 2019 and after marriage, they resided at Satara till

22nd December 2019. Thereafter, the couple shifted to Mhada Colony,

Virar (West), where the Respondent-husband is residing even today.

Mr.Parab, learned Counsel for the Applicant-wife, would submit that

the Respondent-husband and his family members from the beginning

started to harass the Applicant-wife although she was trying her best to

please everyone. That, the family members of the Respondent-husband

used to harass, torture and insult the Applicant-wife for more dowry

and also physically assault her. Finally, around 22 nd March 2020, the

Applicant-wife was not even allowed to enter the matrimonial house by

the Respondent-husband and since then, she has been residing with her

parents. Learned Counsel would submit that on 18 th July 2020, the

Applicant-wife has filed the proceedings under the Protection of

Women from Domestic Violence Act, 2005, and on 13 th October 2020,

First Information Report (FIR) under Section 498A, 323 and 504 of the

Indian Penal Code, 1860, has been lodged in Nallasopara Police

Station. He would submit that the Respondent-husband and his family

members have also obtained anticipatory bail in the matter. That,

thereafter, on 31st October 2020, the Respondent-husband has filed

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5-MCA-171-2022.doc

Marriage Petition No.124 of 2020 under Section 9 of the Hindu

Marriage Act, 1955, for restitution of conjugal rights before the Court

of Civil Judge Senior Division, Vaduj, Satara. He would submit that the

summons in respect of the said Petition was received by the Applicant-

wife around end of March 2021, after which, the Applicant-wife has

filed Divorce Petition against the Respondent-husband before the Court

of Civil Judge, Senior Division, Vasai on 24th November 2021.

4. Mr.Parab, learned Counsel for the Applicant-wife, would submit

that the relations between the Applicant-wife and the Respondent-

husband have no future, and therefore, the Applicant-wife is keen on

seeking a divorce. He would submit that although the Applicant -wife

is qualified as a B.Sc. Graduate, she is residing with her parents and her

father is jobless and mother is housewife. He would submit that the

Applicant-wife is also practically jobless except that she is at the

moment attending a pathology clinic for two hours and earning

Rs.300/- to Rs.400/- per day. Learned Counsel submits that the

financial condition of the Applicant-wife is very poor, and that the

distance between Vaduj and Vasai is about 400 kms. one way and a

travel time of 7 to 8 hours. Therefore, travelling to Vaduj every time the

matter is listed there, may not only cause inconvenience but also undue

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5-MCA-171-2022.doc

hardship to the Applicant-wife. He would submit that, in any case, the

Divorce Petition has been filed by the Applicant-wife in Vasai, and

therefore, it would be in the interests of justice if the Petition for

restitution of conjugal rights is transferred to the same Court where the

Divorce Petition is pending. Learned Counsel, therefore, prays that this

Application be allowed.

5. On 20th September 2023, this Court passed the following order :

“1. Pursuant to order dated 4 th September, 2023, Mr. Parab,
learned counsel for the Applicant-wife seeks to file affidavit of
service in the matter. Learned counsel submits that although an
attempt was made to file affidavit of service, however, the registry
has kept it pending. Registry to accept the same.

2. Let a hard copy of the same also be filed. Registry also to
accept the dates and events filed by the learned counsel for the
Applicant.

3. List on 27th September, 2023, for passing orders.

4. Ad-interim order granted earlier to continue till the next
date.”

6. Learned Counsel has filed affidavit of service which indicates that

service to the Respondent-husband has been effected. The Remarks

column from the cause-list also indicates that on an earlier occasion,

the Respondent-husband has refused to accept service. It appears that

the Respondent-husband is not interested in attending to the matter

here, despite service. As such, the submissions made on behalf of the

Applicant-wife remain unchallenged.

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5-MCA-171-2022.doc

7. Having heard the learned Counsel and having perused the

Application and considering the inconvenience and hardship of the wife

as narrated above, this Court is of the view that ends of justice would

be served if the Marriage Petition No.124 of 2020 filed by the

Respondent-husband before the Civil Judge Senior Division, Vaduj,

Satara, is transferred to the Court of Civil Judge Senior Division at

Vasai.

8. The Hon’ble Supreme Court in the case of N.C.V. Aishwarya Vs.

A.S. Saravana Karthik Sha1 has very clearly observed that in such

matters, the convenience of the wife is to be considered. Paragraph No.

9 of the said decision is usefully quoted as under :-

“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.”

(Emphasis Supplied)
1 SCC Online SC 1199 (2022)

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5-MCA-171-2022.doc

9. In the circumstances, let Marriage Petition no.124 of 2020 filed

by the Respondent-husband under Section 9 of the Hindu Marriage Act,

1955 for restitution of conjugal rights, pending before the Civil Court

Senior Division, Vaduj, Satara be transferred to the Court of Civil Judge

Senior Division at Vasai, Palghar.

10. The Application, accordingly, stands disposed.

11. It is made clear that any observation(s) 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 Petitions for divorce or for

restitution of conjugal rights which are to be tried and decided on their

own merits uninfluenced by the said observations.

(ABHAY AHUJA, J.)

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Signed by: Mrs.Arti V. Khatate
Designation: PS To Honourable Judge
Date: 29/09/2023 20:57:09

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