Bombay High Court: In an application seeking transfer of divorce proceedings filed by husband for dissolution of marriage before a Nashik Family Court to the Civil Court in Jaysingpur, Abhay Ahuja, J. allowed wife’s application considering her diabetic condition and one way distance of 468 kilometres.
The couple got married on 29-11-2012 at Sangali District. It was submitted on behalf of the wife that after marriage, the couple started cohabiting at the husband’s matrimonial home at Nashik and gave birth to a girl on 19-11-2013. Information regarding wife being diagnosed with Type 1 Diabetes in 2015 was also disclosed, which made her insulin dependent on an everyday basis. After several quarrels during the subsistence of marriage, the wife left her matrimonial home on 2-06-2018 and started residing at her parental home.
The wife filed criminal proceedings under Protection of Women from Domestic Violence Act, 2005 and the Court awarded monthly maintenance of Rs 10,000 for the daughter and Rs 3,000 for the wife until April 2020. On 23-03-2022, the husband filed divorce proceedings before Family Court at Nashik.
Since she was not employed, diabetic and only looking after her school going daughter and aged parents, it was submitted on behalf of the wife that she would be inconvenienced and caused undue hardship in going to and fro Nashik travelling 468 Kms one way, and the husband being a Senior Government Officer having all the resources at his disposal may not face such inconvenience. On the said pretext, the wife came up with the application seeking transfer of divorce proceedings to the Civil Court at Jaysingpur.
Court’s Scrutiny for Transfer of Divorce Case
The Court referred to N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199 wherein, the Court considered husband’s contest against wife’s plea for transfer of divorce case and held that in like matters, wife’s convenience should be preferred over that of husband and thereby transferred the proceedings to another Court. The said decision was followed in Devika Dhiraj Patil Nee Devika Jayprakash Buttepatil v. Dhiraj Sunil Patil, 2023 SCC OnLine Bom 1926.
The Court highlighted the underlying principle governing proceedings under Section 24 of Civil Procedure Code, 1908 (‘CPC’) regarding preference to wife’s convenience over that of the husband. The Court took note of the fact that the diabetic wife dependent on insulin would have to travel a distance of 468 Kms one way, taking almost 3 days to travel to and fro from Nashik, while she has to look after her school going daughter and aged parents. The Court was of the view that mere willingness of the husband to pay for her travel and stay cannot be a ground for disallowing the instant application. It further expressed concern that “Although, diabetes may not be a serious condition, but the requirement of taking insulin and having a companion to travel is necessary, in as much as in a diabetic condition, a person can become hypoglycemic any time and if there is no companion to take care, it could lead to a fatal situation.”
Keeping up with the settled law and the facts in the instant case, the Court thought it fit to allow the wife’s application and transfer the divorce proceedings filed by the husband from Family Court, Nashik to the Court of Civil Judge Senior Division, Jaysingpur. However, the husband being a Senior Government Officer, the Court acknowledged his difficulty to take leave every now and then and granted him the liberty to appear before the said Court through video conferencing, upon an application made in that behalf to the Court concerned for the days when his physical presence is not required.
[Priyanka Rahul Patil v. Rahul Ravindra Patil, 2023 SCC OnLine Bom 1982, decided on 15-09-2023]
Advocates who appeared in this case :
For Applicant: Advocate Akshay Kulkarni
For Respondent: Advocate Shrikant Bhilare