Bombay High Court
Ronit Suresh Gundesha vs Gayatri Sanjay Shah on 23 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 933
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
MCAST-98349-20.doc
BDP-SPS
Bharat
D.
Pandit IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by Bharat D.
Pandit
Date:
2021.02.23
CIVIL APPELLATE JURISDICTION
MISC. CIVIL APPLICATION (ST) NO. 98349 OF 2020
18:22:13 +0530
Mr. Ronit Suresh Gundesha ..... Applicant.
V/s
Mrs. Gayatri Sanjay Shah ...... Respondent.
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Mr. Abhijit D. Sarwate a/w Ms. Ajinkya Udane for the Applicant.
Mr. Amol B. Jagtap for the Respondent.
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CORAM: NITIN W. SAMBRE, J.
DATE: FEBRUARY 23, 2021
P.C.:-
1] This application is for transfer of Cri. M.A. No.5122 of 2019
initiated under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "D.V. Act" for the sake of brevity) which is pending on the file of learned Judicial Magistrate, First Class, Pune to the Family Court No.1, Pune where proceeding being P.E. No.2/2020 is pending adjudication. Prayer for recording of common evidence is also made.
2] Few facts necessary for deciding the application are as under:-
3] Parties to the application got married on 12/12/2017 at 1/8 MCAST-98349-20.doc Mahabaleshwar in Satara District. Out of matrimonial discord, non- applicant initiated proceedings for grant of maintenance under Section 125 of the Code of Criminal Procedure which is pending before the Family Court, Pune. The said proceedings were initiated sometime in 2019. There is one more proceeding initiated by wife being M.A. No.5122 of 2019 under the provisions of Sections 12, 18, 19, 20, 22 and 23 of D.V. Act against the present Applicant and his family members. As such, in both these applications, present Applicant/husband is non-applicant and is seeking transfer of the same for being tried together.
4] Submissions of learned Counsel for the Applicant Mr. Sarwate are, both these applications need to be heard by one court i.e. Family Court No.1, Pune which is seized of the proceeding being P.E. No.2/2020 i.e. one under the provisions of Section 125 of the Code of Criminal Procedure Code for grant of maintenance. Mr. Sarwate would urge that in case if application is allowed, hardship which will be caused to both parties to attend two different proceedings can be avoided. He would submit that contradictory judgments on the same set of facts may be delivered which needs appreciation in the matter of 2/8 MCAST-98349-20.doc consideration of prayer of the Applicant. The learned Counsel then would invite attention of this Court to the judgments of this Court in the matters of (1) Sandip Mrinmoy Chakraboarty vs. Reshita Sandip Chakrabarty & Anr delivered on 6/9/2018 in Criminal Writ Petition No. 4649 of 2015, (2) Hitesh Prakashmalji Mehta vs. Aashika Hitesh Mehta delivered on 28/9/2020 in Misc. Civil Application (St) No.788 of 2020 and (3) Santosh Machindra Mulik vs. Mohini Mithu Choudhari vs delivered on 15/11/2019 in Misc. Civil Application No.64 of 2019 so as to substantiate his aforesaid contentions. 5] Per contra, Mr. Jagtap, learned Counsel for the Respondent, has opposed the transfer as, according to him, both the proceedings are independent in nature. The proceeding for grant of maintenance under Section 125 of the Code of Criminal Procedure is filed with altogether different object than that of the proceeding filed under D.V. Act. He would then urge that every court while dealing with the proceeding which is pending before it, is required to be sensitive to the nature of jurisdiction exercised by the court and that being so the court is required to be within its limitation. As such, according to him, transfer of proceeding as prayed for should not be granted. 3/8
MCAST-98349-20.doc 6] Mr. Jagtap would then urge that the scope of provisions of D.V. Act is much wider than that of the provisions under Section 125 of the Code of Criminal Procedure. The order under Section 20 of D.V. Act for grant of maintenance is not restricted or regulated by the provisions of Section 125 of the Code of Criminal Procedure and in that view of the matter, both the proceedings are required to be termed as independent proceedings and cannot be heard and dealt with together. He would rely upon the following judgments/Orders in support of his contentions:
(i) Judgment of Delhi High Court dated 11/4/2019 passed in CRL REV. PET. 994 of 2018 in the matter of Shome Nikhil Danani vs. Tanya Banon Danani.
(ii) Order of the Apex Court in Transfer Petition No.280 of 2020 passed on 11/09/2020 in the matter of Motilal (Died) as per LRs vs. The District Collector and Ors.
(iii) Order of the Apex Court in Criminal Appeal No.1613 of 2019 passed on 23/10/2019 in the matter of P. Rajkumar & Anr. vs. Yoga @ Yogalakshmi. 4/8
MCAST-98349-20.doc 7] Considered rival submissions.
8] From the prayer and pleadings in the application, it appears that both the parties out of their matrimonial discord are litigating in two proceedings; one under section 125 of the Code of Criminal Procedure pending on the file of Family Court No.1, Pune whereas other proceeding under the provisions of D.V. Act is pending on the file of Judicial Magistrate, First Class, Pune.
9] Fact remains that basis for initiation of both these proceedings is matrimonial discord and factual matrix which is required to be considered in dealing with the claim raised therein appears to be similar.
10] This Court in the matter of Santosh Machindra Mulik cited supra has already ruled that the Family Court has every jurisdiction to try the proceedings for maintenance under Section 125 of Code of Criminal Procedure having regard to provisions of Section 26 of D.V. Act. Apart from above, this Court is also sensitive to the findings recorded in the matter of Sandip Mrinmoy Chakraboarty cited supra 5/8 MCAST-98349-20.doc wherein similar issue fell for consideration. Even if distinct relief i.e. of maintenance under the Code of Criminal Procedure and other relief under the provisions of D.V. Act are claimed in two family proceedings, the lis between the parties is required to be decided based on certain similar set of facts. As such, parties will be put to hardship of leading evidence on the same set of facts before different courts thereby wasting the precious judicial time of the Court. It cannot be said that Family Court lacks jurisdiction to decide the proceedings under D.V. Act. As observed hereinabove, Family Court has every power to record common evidence in both these proceedings, may be the reliefs sought to some extent are overlapping. However, the Court must be sensitive to the fact that it should avoid multiplicity of proceedings. Considering the object of Section 24 of the Code of Civil Procedure which provides for transfer of the proceedings from one court to another, the Court must avoid multiplicity of litigation and passing of contradictory orders on the same set of facts and evidence by two different courts trying two different proceedings and in such circumstances powers of transfer can be exercised so as to grant relief of transfer.
6/8
MCAST-98349-20.doc 11] As such, judgments on which reliance is placed by the learned Counsel for the Applicants in the matter of Sandip Mrinmoy Chakraboarty, Hitesh Prakashmalji Mehta, Santosh Machindra Mulik cited supra have squarely covered the issue which is sought to be canvassed in the present application. As far as reliance placed by the learned counsel for non-applicant on the order of Apex Court in P. Rajkumar cited supra is concerned, same will hardly of any assistance particularly when in the said proceedings maintenance issue under the provisions of D.V. Act was not negated and relief of maintenance was claimed under Section 125 of the Code of Criminal Procedure. The Apex Court as such has observed that relief under Section 20 of D.V. Act and under Section 125 of the Code of Criminal Procedure are in two different and independent proceedings. Similarly, the judgment in the matter of Motilal cited supra also will be hardly of any assistance to the non-applicant as in the facts of the said case the Apex Court was dealing with the prayer for transfer of writ appeal filed in Telangana High Court to the High Court of Delhi. In the case in hand, what can be noticed is matrimonial proceeding from the court of Judicial Magistrate, First Class, Pune is sought to be transferred to the Court of Family Court No.1, Pune for being tried with maintenance 7/8 MCAST-98349-20.doc proceedings initiated under Section 125 of the Code of Criminal Procedure. That being so, judgments relied upon by the learned Counsel for non-applicant in support of his prayer for rejection of the prayer of transfer are hardly of any assistance to the non-applicant. 12] As such, for the reasons recorded hereinabove, application is to be allowed in terms of prayer clause (a) and same is accordingly allowed.
( NITIN W. SAMBRE, J. ) 8/8