The Bombay High Court, in a judgment delivered by Justice Kamal Khata, has allowed a husband’s application to transfer matrimonial proceedings from Thane to Dhule, citing that the balance of convenience favoured him due to his responsibilities of caring for two minor children, his aged parents, and managing his sole source of livelihood. The court rejected a competing application from the wife, who sought to transfer the proceedings from Dhule to Thane, despite her plea of financial hardship.
The order was passed in two cross-applications: Miscellaneous Civil Application No. 312 of 2024 filed by the husband, and Miscellaneous Civil Application No. 42 of 2024 filed by the wife.
Background of the Case
The parties were married on June 3, 2011, in Dhule. They have two daughters, currently aged 12 and 6.
According to the wife’s petition, she was subjected to ill-treatment and mental harassment over dowry demands. She alleged that on December 8, 2022, following a quarrel where she was accused of infidelity, she was compelled to leave the matrimonial home. After failed attempts at reconciliation, she filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, before the Family Court in Thane on September 13, 2023 (Marriage Petition A-472 of 2023).
The husband contested this narrative, alleging that the wife committed adultery and, upon being confronted, voluntarily left the matrimonial home in December 2022. He subsequently filed a petition for divorce before the Civil Judge Senior Division (CJSD) in Dhule under Section 13(1)(la) of the Hindu Marriage Act, 1955 (H.M.P. No. 175 of 2023).
Both parties then filed applications seeking to transfer the other’s case to the court where their own petition was pending.
Arguments of the Parties
Submissions for the Wife: Appearing for the wife, Advocate Mahendra M. Agavekar argued that she is a non-working woman entirely dependent on her aged and ailing parents. Her father, a heart patient, earns approximately ₹14,000 per month as a watchman. It was contended that the expenses for travelling to Dhule were unaffordable and would cause her significant physical, emotional, and psychological hardship. Citing previous judgments, her counsel submitted that the wife’s convenience ought to prevail in such matters.
Submissions for the Husband: Advocate Shantanu Deshpande, representing the husband, submitted that his client runs a small kirana (grocery) shop in his village in Dhule, which is his sole source of livelihood. He is the primary caregiver for their two minor daughters and also looks after his aged parents. The court was informed that the shop is attached to his residence, which enables him to simultaneously care for the children. He argued that a general plea of inconvenience is not a valid ground for transfer and offered to reimburse the actual travel expenses for the wife and one person accompanying her. His counsel argued that the balance of convenience clearly tilted in his favour, given his dual responsibilities.
Court’s Analysis and Decision
After considering the submissions, Justice Kamal Khata described the matter as “a peculiar case where both parties face genuine hardships, and the balance of convenience is not easy to determine.”
The Court acknowledged the husband’s continuous responsibilities towards his shop, two school-going children, and aged parents. On the other hand, it noted the wife’s financial constraints.
However, in its final analysis, the Court found the husband’s position more compelling. Justice Khata observed, “Having regard to the totality of the facts, I find the balance of convenience in favour of the husband. His responsibilities towards his two young children, his aged parents, and the management of his livelihood are such that directing him to contest the proceedings at Thane would cause substantial hardship.”
The Court further noted that the wife had “not demonstrated that travelling from Thane to Dhule is impossible.” It concluded that her primary inconvenience—the cost of travel—was “adequately addressed by husband’s undertaking to reimburse all such expenses, including those of a companion travelling with her.”
Based on this reasoning, the Court allowed the husband’s application. The judgment stated, “Accordingly, the Application of the husband namely Miscellaneous Civil Application No.312 of 2024 is allowed in terms of prayer clause (a).”
Consequently, the wife’s Miscellaneous Civil Application No. 42 of 2024 was rejected, and her petition for restitution of conjugal rights was ordered to be transferred from the Family Court, Thane, to be heard along with the husband’s divorce petition at the Court of Civil Judge Senior Division, Dhule.
