Zehra H. Bhojani v. Hasnainali M. Bhojani
1 / 4 932-MCA-291-16.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION MISCELLANEOUS CIVIL APPLICATION NO. 291 OF 2016 Mrs.Zehra Hasanali Bhojani ...
Applicant
Versus
Shri.Hasanalo Mohsin Bhojani ...
Respondent Ms. Ishika Tolani a/w. Navin Sachanandani for the Applicant. Mr.Umesh Mankapure for the Respondent.
CORAM : S.J. KATHAWALLA, J.
DATED : 16TH JUNE, 2017 P.C.:
1.
By the above Miscellaneous Civil Application filed under Section 24 of the Code of Civil Procedure, 1908, the Applicant-mother seeks transfer of Custody Petition No.213 of 2016 filed by the Respondent-father pending before the District Court, Sangli to the Family Court, Bandra, Mumbai. 2.
According to the Applicant, she and the Respondent got married at Sangli on 08.09.2013. There is one child (son) named, Alihyder born to the Applicant and the Respondent on 20.07.2014 who is currently under the care and custody of the Applicant-mother. On or about 12.03.2015, disputes arose between the parties at matrimonial home and the Applicant returned to her parental home to Mumbai. 3.
On 20.08.2016, the Applicant filed a case under the Domestic Violence Act, 2005 against the Respondent and his family at Railway Mobile Court at Andheri and
2 / 4 932-MCA-291-16.sxw thereafter, on 13.06.2016 filed a custody Petition under Sections 9(1) and 17(1)(2) before the Family Court, Bandra, Mumbai. On 20.10.2016, when the Applicant was out, her watchman informed her that some post through Sangli Court was received. The Applicant searched the website and learnt that a custody petition was filed by the Respondent before the Court at Sangli, which had already appeared before the Court on four occasions. The Applicant thereafter travelled by bus from Mumbai to Sangli alongwith her father to attend the proceedings. The distance from Mumbai to Sangli is approximately 380kms. i.e. 760 kms. (to and fro). According to the Applicant, when she travelled to Sangli, she had to request her married sister to look after her minor child in Mumbai.
4.
The Applicant submits that being a woman, she finds it difficult to travel from Mumbai to Sangli without a male escort to defend the custody proceedings filed by the Respondent. It is very difficult for her to travel all the way from Sangli to Mumbai leaving her son who is two years and four months old at Mumbai. Her parents and other family members are also stressed out since her younger sister is diagnosed with cancer. In view of the long distance between Mumbai to Sangli, she needs to undertake an overnight journey on every date of hearing and she has no friends or relatives with whom she can stay overnight when in Mumbai. Since she is not paid any amount by the Respondent towards her maintenance and the maintenance of the child, she is unable to bear the travel expenses towards boarding and lodging. The Applicant has stated that she has filed a case under the Protection of
3 / 4 932-MCA-291-16.sxw Women from the Domestic Violence Act, 2005 before the Railway Mobile Court, Andheri on 20.08.2016 which the Respondent is required to attend. She has also filed a petition under the Guardians and Wards Act, 1890 before the Family Court, Bandra, Mumbai and if the Petition filed by the Respondent at Sangli is transferred to Mumbai, it would rule out conflicting decisions being passed in the matters. 5.
It is submitted on behalf of the Respondent that his father has a novelty shop and he is working with his father. He has filed Custody Petition prior in time and therefore, the same should not be transferred from Sangli to the Family Court, Bandra, Mumbai.
6.
Admittedly, the Applicant has filed Domestic Violence Case against the Respondent and his family members before the Railway Mobile Court at Andheri on 20.08.2016 which is pending and the Respondent is required to attend the same. The Applicant has on 13.10.2016 also filed Custody Petition under sections 9(1) and 17(1)
(2) of the Guardians and Wards Act, 1890 before the Family Court, Bandra, Mumbai. She was at that time not aware that even the Respondent has filed a custody case under Section 25 of the Guardians and Wards Act, 1890 on 24.06.2016. The Applicant is required to also look after a child, who is about 21⁄2 years old. The distance between Sangli and Mumbai is about 380kms. (one way) and it takes 9-10 hours to reach Sangli from Mumbai by bus. The minor child is required to be left by the Applicant with her family members who are distressed since her sister is detected with cancer. Again the child would not stay overnight without the mother. Since both
4 / 4 932-MCA-291-16.sxw the parties have filed the custody petition, it would be prudent that the same are decided by one court to avoid conflicting decisions. The Respondent is assisting his father in his business, he can therefore, certainly travel to Mumbai, if his custody petition is transferred from Sangli to Mumbai, more so, since he is already required to come to Mumbai to defend the case filed by the Applicant against him and his family members under the Domestic Violence Act.
7.
In the above circumstances, I pass the following order. (a) The Custody Petition being No.213 of 2016 filed by the Respondent-father is directed to be transferred from the District Court at Sangli to the Family Court at Bandra, Mumbai.
(b) The District Court at Sangli is directed to transmit the papers and proceedings of Custody Petition No. 213 of 2016 to the Family Court at Bandra, Mumbai.
(c) The parties as well as the District Court at Sangli and the Family Court at Bandra, Mumbai to act on an authenticated copy of this Order ; (d) Both the parties shall appear before the Family Court at Bandra, Mumbai on 27th July, 2017 at 11.00 a.m. and obtain appropriate orders. Miscellaneous Civil Application is allowed in the aforesaid terms, with no order as to costs.
( S.J.KATHAWALLA, J. )