Bombay High Court: The present application was filed by applicant-wife seeking transfer of marriage petition filed by respondent-husband in the Court of Civil Judge Senior Division, Vasai to the Family Court at Bandra, Mumbai. A Single Judge Bench of Milind N. Jadhav, J., stated that not once had it been considered that applicant was required to support and care for her 15-months’ old son and if she was to attend the proceedings in Vasai Court, how and who would take care of the child in her absence. The Court held that the present application deserved to be allowed as applicant being a single mother required to take care of her son who was born pre-term and was therefore facing constant health issues. Further, the Court imposed Rs 1,00,000 exemplary cost on respondent.
Applicant was a resident of Mahim where she was residing with her parents, two brothers and her 15 months old son. The expenses of applicant and her son were borne by her father and brothers. It was submitted that applicant was facing severe difficulty to travel from Mahim to attend the marriage petition proceedings in Vasai Court as she was spending 8 hours on average traversing the distance and it was impossible for her to leave her son at home, and she was required to carry him along with her. It was also submitted that her son was born premature and was still bodily weak and required regular and constant medication including substantial costs. Applicant’s mother, due to her old age and ill health, could not provide care and support to applicant’s son, if he was left behind at home.
Counsel for respondent opposed the present application on the ground that applicant could very well undertake the journey to Vasai which she had been attending till now and if she so required, respondent would be ready and willing to bear the expenses that would be incurred by her to undertake and traverse the said distance.
The Court observed that respondent had not paid and was not even paying a single farthing to redress and ameliorate the difficulty faced by applicant. The Court stated that if applicant had to travel with her son, it would be more difficult for her to travel, since boarding and alighting from the local train on the western railway corridor at any given time during the day was extremely difficult proposition considering that trains were always overcrowded. That apart, there were only two modes of public transport available, firstly the MSRTC buses which were always overcrowded and secondly, the auto-rickshaws which ply the said distance at an exorbitant cost.
The Court noted that respondent had three salons in Vasai and was earning very well but merely due to this reason, he could not insist that he would bear applicant’s travel cost to attend the proceedings in marriage petition in Vasai. The Court stated that not once had it been considered that applicant was required to support and care for her son and if she was to attend the proceedings in Vasai Court, how and who would take care of the child in her absence.
The Court relied on N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199, wherein principles were laid down with respect to matrimonial matters that whenever courts were called upon to consider the plea of transfer, courts must take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural 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 were seeking their sustenance in life.
The Court opined that inconvenience caused to applicant in the present case was evident and could not be disregarded by the Court, thus it rejected all the submissions made on respondent’s behalf. The Court held that the present application deserved to be allowed as applicant being a single mother required to take care of her son who was born pre-term and was therefore facing constant health issues.
The well-being of the son should undoubtedly be at the forefront and of paramount importance for the parents, however, the entire responsibility was on applicant alone and respondent had completely exonerated himself of his duty as a parent to the detriment of the mother and child. The Court thus allowed the application and imposed Rs 1,00,000 exemplary cost on respondent which was to be paid to applicant, who endured suffering for the last 21 months from the date of birth of her son and furthermore from the date of filing of the marriage petition by respondent in the Court of Civil Judge Senior Division, Vasai seeking a decree of divorce under Section 13(1)(i) and/or Section 13(1)(ia) of the Hindu Marriage Act, 1955.
[Sarita Rahul Sharma v. Rahul Udayraj Sharma, 2024 SCC OnLine Bom 3179, decided on 03-10-2024]
Advocates who appeared in this case :
For the Applicant: Nazneen Contractor i./by Kripashankar Pandey, Advocate
For the Respondent: R.S. Tripathi i./by Mohd. Shahid, Advocates
