Ajay Vijay Muley v. Nikita Ajay Muley

HARSHADA H. SAWANT (P.A.) IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.2 OF 2024 IN MISCELLANEOUS CIVIL APPLICATION NO.393 OF 2023 Ajay Vijay Muley .. Petitioner

Versus

Nikita Ajay Muley .. Respondent ....................

 Mr. Chinmay Kini, Advocate i/by Mr. Kartik Mundhe, Advocate for Applicant.

 Mr. Sachin Gite, Advocate for Respondent.

...................

CORAM

: MILIND N. JADHAV, J.

DATE : OCTOBER 15, 2024 P.C.

:

1.

Heard Mr. Kini, learned Advocate for Applicant and Mr. Gite, learned Advocate for Respondent.

2.

This Review Petition is nomenclatured as Review Petition No.2 of 2024 filed by Applicant who is Respondent in the principal proceeding. Principal proceeding is Miscellaneous Civil Application No.393 of 2023 which was disposed of on 04.09.2024, by the following order:- "1.

Heard Mr. Gite, learned Advocate for Applicant. None appears for Respondent despite being served. This transfer Application cannot be protracted further.

2.

Miscellaneous Civil Application seeks transfer of Petition No. A-51 of 2023 filed by Respondent before Family Court at Aurangabad to Family Court at Nashik where she is residing with her parents. The grounds for hardship are evident from the Miscellaneous Civil Application and more specifically as enumerated in paragraph Nos.12A to 12E.

3.

That apart, there are proceedings proceedings under the Protection of Women from Domestic Violence Act, 2005 (for short 'the said Act') and maintenance proceedings filed by Applicant Court at Nashik which are evident from reading of paragraph No.8 of the Miscellaneous Civil Application. Both the proceedings are prior in point of time.

4.

In that view of the matter, convenience of wife, as also proximity of distance between two destinations will have to be considered in favour of Applicant for allowing the Application. Miscellaneous Civil Application stands allowed in terms of prayer clause (a) which reads thus:- "(a) This Hon'ble Court may be pleased to direct to transfer of the proceedings bearing the Petition No. A-51 of 2023 filed by the Respondent before the Family Court, at Aurangabad to the Family Court at Nashik Road, Nashik."

5.

With the above directions, Miscellaneous Civil Application is allowed and disposed."

3.

Being aggrieved with the order, Respondent therein has filed the present Review Petition. Parties shall be referred to as 'Petitioner' and 'Respondent' for the sake of convenience. Applicant in Miscellaneous Civil Application is wife whereas Respondent is husband. Wife filed Miscellaneous Civil Application seeking transfer of Marriage Petition No.A-51 of 2023 filed by husband before Family Court, Aurangabad to Family Court, Nashik on the grounds of hardship. The grounds of hardships as enumerated in paragraph Nos.12A to 12E of the Miscellaneous Civil Application were duly considered by the Court. Though Respondent was duly served he did not appear on the date of hearing. Application for transfer could not be protracted any further since it was more than one year old and was therefore heard and decided on merits exparte.

4.

Be that as it may, grievance is now made by Respondent by filing the present Review Petition that he be heard and the hardship which is encountered by him may be considered for recall of the order. In that view of the matter and on the grounds which are mentioned in the Review Petition, present Review Petition is filed for seeking recall of order dated 04.09.2024.

5.

I have heard Mr. Kini, learned Advocate for Review Petitioner - husband and Mr. Gite, learned Advocate for Respondent - wife in the Review Petition and considered the pleadings. 6.

Briefly stated, Review Petitioner's case is that there is one child born out of wedlock between the parties who is as on date six years old and is residing and staying with the Review Petitioner - husband - father of the child. He would submit that the said child / son was born premature after complications. My attention is drawn to page No.136 read with page No.138 of the Review Petition wherein certain medical details of the procedures undertaken by Respondent - wife are documented in the medical reports which are placed on record. He would submit that these reports be considered by the Court.

7.

Mr. Kini would next submit that the premature son was born on 21.12.2018 but because of medical complications was kept in Neonatal Intensive Care Unit until 14.01.2019. He would draw my

attention to the details of the medical issues faced by the son post his birth. Those details are all appended to the Petition. He would submit that Respondent - wife thereafter deserted and left the husband and her son on 21.07.2022 and went over to stay with her parents in Nashik. He would draw my attention to the fact that the son who now is six years old is 80% disabled and requires constant medical care and support as he is now attending a school at Aurangabad. 8.

The sum and substance of the submissions made by Mr. Kini is that Petitioner - husband is required to take care of the child and provide support and medical care to him. His parents are taking care of the son. He would in his usual fairness inform the Court that Petitioner is working as Assistant Engineer, PWD with the State Government of Maharashtra and stationed at Aurangabad, at present. However, just a few days ago, Petitioner was promoted to the post of Deputy Engineer and an order of transfer has also been issued to him to report to Udgir in District - Latur. He would inform the Court that Petitioner - husband has made a representation to his Seniors in the State Government to consider his present situation due to the difficulty faced by his son who is staying with him to whom he is required to provide primary care and support to halt his transfer. He would inform the Court that husband's parents are of old age and are infact taking care of the son since he is staying with them. In view of the aforesaid difficulty faced by the husband, order dated 04.09.2024 be

recalled is what he would submit and the Application be dismissed. 9.

Further submissions and reasons for recall of the order are qua the Respondent - wife. He would submit that Respondent - wife is an educated lady and she can very well travel to Aurangabad to attend proceedings in the Marriage Petition as she was working in Aurangabad until February - 2022. He would submit that Respondent - wife has post giving birth to her son appeared for various entrance examinations conducted by the Employees State Insurance Corporation, Maharashtra State Road Transport Corporation, Institute of Banking Personnel Selection, Reserve Bank of India etc. and call letters of the said examinations are appended at page Nos.334, 342, 353, 374 of the Petition. He would submit that until February - 2022 Respondent - wife was working in a Company called Network Limited in Aurangabad and hence it would not be difficult for her to travel to Aurangabad to attend proceedings in the Marriage Petition. In support of his aforesaid submissions, he would refer to and rely upon three decisions of the Supreme Court as under:- (i) Preeti Sharma Versus Manjit Sharma1.

(ii) Anindita Das V. Srijit Das2.

(iii) Amandeep Goyal V. Yogesh Rani3.

10.

While drawing my attention to the case of Preeti Sharma (2005) 11 Supreme Court Cases 535.

(2006) 9 Supreme Court Cases 197.

AIR 2016 Supreme Court 4833.

(first supra), he would submit that in this case Supreme Court considered the case of an unemployed wife who had sought transfer of the Suit pending in the Court of the Civil Judge, Muzaffar Nagar, Uttar Pradesh to the Court of District Judge, Shahadara, Delhi. He would submit that the Supreme Court considered the case of the wife therein and held that merely because the Petitioner was a lady it would not mean that she cannot travel to Muzaffar Nagar. Supreme Court also held that she can be paid expenses for the travel and stay and therefore directed the husband to pay to his wife expenses for travel on every occasion when she would be required to go to Muzaffar Nagar and dismissed the transfer Petition of the wife. The facts in the present case however materially differ from the facts in the case of Preeti Sharma (first supra). The facts in this are already delineated hereinabove.

11.

Next in the case of Anindita Das (second supra), Mr. Kini has drawn my attention to paragraph No.4 of the said decision of the Supreme Court to contend that the Supreme Court has held that each Petition will have to be considered on its own merits and the grounds taken by the wife for effecting such transfer. He would draw my attention to the general observations / obiter of the Supreme Court made in paragraph No.3 therein where Supreme Court has held that at one stage, the Supreme Court was showing leniency to ladies but since then it has been found that large number of Marriage Petitions are

filed taking advantage of the leniency shown by the Supreme Court and on an average 10 to 15 transfer Petitions are on the board of each Court on the admission day. He would draw my attention to the observation of the Supreme Court that leniency of that Court was misused by women. He would submit that in that case the wife made a grievance for transfer on the ground that she had a small child and there was nobody with whom she could keep her child safely. In that case, the child was six years old and the grandparents were available to look after the child and the husband was ready and willing to pay all expenses for the travel and stay of Petitioner and her companion to attend the Court in Delhi.

In that view of the matter, transfer Petition of the wife was dismissed by further holding that on the ground of her health, no particulars were given by the wife. Once again, it is seen that the facts in this case differ from the facts of the present case and a general obiter, ipso facto cannot be applied as a ratio decidendi to the present case to reject the case of the wife which has been considered by the Court.

12.

The third decision in the case of Amandeep Goyal (third supra) has been brought to my notice to contend that in that case the husband was taking care of a nine year old child suffering from a malignant disease and the Supreme Court held that the High Court should have used its discretion in favour of the Petitioner and therefore the impugned order was set aside. However it is seen that the said

decision of the Supreme Court is shorn of any material facts whatsoever which are not reproduced therein. That apart the facts in the present case once again materially differ and in fact the Supreme Court has held that Court would have to use its discretion. 13.

I have considered the submissions made by Mr. Kini and Mr. Gite, learned Advocates appearing for the respective parties and perused the citations cited by them. In so far the present case is concerned, the Review Petitioner has approached this Court on the ground of hardship. The hardship is on account of he taking care of the son. What is pertinent to note is that when the order dated 04.09.2024 was passed, this Court has considered the submissions made by Mr. Gite on the basis of the Application filed by the wife before the Court. It is therefore necessary to draw attention to the concerned Application. The grounds for transfer i.e. hardship expressed by the wife are enumerated in paragraph No.12 of the Application.

What is pertinent for the Court to consider is that there are five different proceedings filed between the parties which have been enumerated in the grounds for transfer. There is Marriage Petition No.A-51 of 2023 filed under Section 9 of the Hindu Marriage Act, 1955 by husband in the Family Court at Aurangabad. However, apart from this there are four different proceedings with respect to the same cause of action filed by the wife in the Court at Nashik.

Procedure Code, 1973 filed in the designated Court at Nashik. There is a complaint filed under the Protection of Women from Domestic Violence Act, 2005 by wife in the Court of Nashik. Though interim order has been passed in that complaint requiring the husband to pay Rs.4,000/- to the wife, same has been challenged by the husband before the Sessions Court in Nashik and Appeal before the Sessions Court is pending. That apart, there is a complaint under Section 498-A of the Indian Penal Code, 1860 filed by wife in the JMFC Court at Nashik which is pending. All these proceedings have been enumerated by the wife in her principal Application i.e. Miscellaneous Civil Application and have been considered by the Court.

Coming to the principal ground in the present Review Petition with respect to the medical condition of the son, it is seen that in the Application filed by the wife all such details of the son were in fact stated by the wife. A grievance is made before me that same has not been considered by the Court in its order dated 04.09.2024. The Court has in fact considered the same while recording the hardship which is evident on the basis of the grounds enumerated in paragraph Nos.12A to 12E. Considering and perusal of the Miscellaneous Civil Application and more specifically paragraph Nos.5 to 7 thereof clearly refer to the details of the medical conditions of the son which has been explained by the wife.

Miscellaneous Civil Application is concerned, this Court cannot give its imprimatur on merits of the matter between the parties. Even before me today, Mr. Kini has attempted to address me on merits but since the jurisdiction is restricted to the extent of considering the issue of transfer, the merits cannot be gone into. While considering the issue of hardship as enumerated by the husband viz-a-viz hardship enumerated by the wife in Miscellaneous Civil Application, it is clearly seen that hardship of the wife will have to be considered in the present case. It is for the simple reason that Petitioner - husband is already attending three proceedings in the Court of Nashik. Merely on the basis of the medical condition of the son, the husband cannot seek sympathy of this Court.

Undoubtedly, there is no question about doubting the medical condition faced by the son. This Court is sympathetic to the fact that the son would require appropriate medical care, as also require medical visits to the hospital and in the present case, it would undoubtedly be the husband who would have to take care and provide the said medical assistance to the son. The role of the grandparents is also equally important in the present case. In that view of the matter, difficulty which has been expressed by husband can undoubtedly be addressed by the Court by passing appropriate directions. 14.

In that view of the matter, while maintaining and retaining the order dated 04.09.2024 and dismissing the present Review Petition on aforementioned grounds it is directed that the learned Family

Court, Nashik shall permit the Respondent - Ajay Vijay Muley who is the Review Petitioner before me to appear in the Marriage Petition on Video Conferencing on all the scheduled dates of hearing. All contentions of parties are expressly kept open in the proceedings between the parties without expressing anything on merits of the matter.

15.

With the above directions, Review Petition is dismissed. H. H. SAWANT [ MILIND N. JADHAV, J. ] Digitally signed by HARSHADA HANUMANT SAWANT Date:

2024.10.19 17:25:03 +0530 HARSHADA HANUMANT SAWANT