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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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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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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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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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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)
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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