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1996 DIGILAW 508 (MP)

Anjulla Verma v. Capt. Sudhir Verma

1996-05-15

S.C.PANDEY

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JUDGMENT S.C. Pandey, J. 1. This is a petition under Section 24 of the Code of Civil Procedure for transfer of Civil Suit No. 38-A of 1995 filed by the non-applicant for divorce under Section 13 of Hindu Marriage Act, 1956 (hereinafter referred to as the Act) pending in the Court of IV Additional District Judge, Jabalpur, to Family Court at Bandra, Mumbai. 2. The facts of the case are that the non-applicant Capt. Sudhir Verma filed a petition for divorce under Section 13 of the Act against the applicant in the Court of IV Additional District Judge,, Jabalpur. The applicant claims that she had also filed a Petition No. 3-83-95 in the Family Court, Bandra, at Mumbai, on 17.7.1995, as is clear from a photocopy of the certified copy of the order sheet, filed by the applicant. The applicant claims that the divorce petition filed by the non-applicant may be transferred to the Family Court, Bandra/ at Mumbai as she is unable to travel to Jabalpur, with her minor son who is keeping ill. The applicant has not filed any copy of the original petition before this Court. However, it is clear from the order dated 4th of March, 1996 that the Petition No. C/83 of 1995 pending before the Family Court, Bandra, at Mumbai, is for restitution of conjugal rights. 3. The non-applicant has also filed a reply to the petition and has raised a preliminary objection to the maintainability of this petition. The objection raised by way of preliminary objection is that under Section 24 of the Code of Civil Procedure this Court has no jurisdiction to transfer the civil suit pending in the Court of IV Additional District Judge, Jabalpur to Mumbai Court because that Court at Mumbai is not subordinate Court to this High Court. 4. So far as the preliminary objection is concerned, a Division Bench of this Court, in the case of Jagatguru Shri Shankaracharya Jootish Peethadhishwar Shri Swami Swaroopanand v. Ramji TripathiLal Bihari Tripathi, now calling himself Swami Shantanand Saraswati and Ors. reported in 1979 MPLJ 305 , has already decided that in view of Section 23(3) of the Code of Civil Procedure, this Court has jurisdiction to transfer a case pending before its subordinate Court to a Court outside the State. reported in 1979 MPLJ 305 , has already decided that in view of Section 23(3) of the Code of Civil Procedure, this Court has jurisdiction to transfer a case pending before its subordinate Court to a Court outside the State. This Court relied on a decision of a Division Bench of Nagpur High Court in the case of Kanhaiyalal Daga Firm v. Zumberlal and Ors. reported in, 1940 NLJ 231 = AIR 1940 Nagpur 145. The preliminary objection raised by the learned Counsel for the non-applicant on this point is, therefore, liable to be rejected. 5. The next point that arises for consideration is whether Civil Suit No. 38-A of 1995 should be transferred from Jabalpur to Mumbai. It is clear from the order sheet dated 23.1.1995 that the Civil SuitNo.38-A of 1995 was filed earlier and it was pending before the learned Additional District Judge, Jabalpur, on 23.1.1995. The application for restitution of conjugal rights, registered as Petition No. C/83 of 1995 in Family Court, Bandra, at Mumbai appears to have been filed subsequently. It has been pending before the Family Court, Bandra, at Mumbai since 17.7.1995. Under Section 21A of the Act it is postulated when two petitions for judicial separation under Section 10 or for a decree of divorce under Section 13 of the Act are presented in the same Court or in a different District Court in the same State or in different State, then the petition filed subsequently, in either case, shall be transferred to the Court where the earlier petition was filed. Therefore, so far as petitions under Section 10 or 13 of the Act are concerned, the Legislature itself has provided that the subsequent petition shall be transferred to the Court where the first petition was filed. However, in this case in first petition filed by the non-applicant, is under Section 13 of the Act while the subsequent petition filed before the Family Court, Bandra, at Mumbai, by the applicant, under Section 9 of the Act fro restitution of conjugal rights, in terms of Section 21A of the Act, may not be applicable, but the principle underlying Section 21A of the Act should also govern the disposal of this case. It is obvious that Section 21A of the Act was added with a view to curb the tendency on the part of the parties, who demanded the transfer of earlier petition by filing a petition subsequent after receipt of notice of the earlier petition under the Act with a view to protract litigation. The Legislature, in its wisdom, limited the application of this proof only to petitions filed under Sections 10 and 13 of the Act. However, in the opinion of this Court, the same principle can be extended in its application to the facts of the present case. In this case, the husband after having been transferred from Shahdol to Mumbai, had filed the petition for divorce at Jabalpur alleging that the parties last resided together at Jabalpur on or about the date of filing of the divorce petition. The applicant, however, filed the petition for restitution of conjugal rights subsequently and now she is demanding transfer of the suit pending at Jabalpur to Family Court, at Bombay. There is nothing in me petition to show that the claim of the applicant is justified. The applicant has made barest allegations that her minor son is keeping ill and she was unable to maintain herself. No details have been given in this petition. Though the non-applicant has given a detailed reply denying the allegations made by the applicant. It is not necessary to consider in any detail, the reply filed by the non-applicant because in the opinion of the Court the applicant has not supported her case by making definite allegations. It is true mat the applicant may suffer some inconvenience when she is required to come to Jabalpur for instructing her Counsel in the divorce case, but she is not required to be present in the Court at Jabalpur on each and every hearing. After filing her written statement she may be required only to appear before the Court at Jabalpur only on few occasions. Her presence may be most essential when the evidence is recorded. She can be present in the Court at that time, if she thinks fit to do so. After filing her written statement she may be required only to appear before the Court at Jabalpur only on few occasions. Her presence may be most essential when the evidence is recorded. She can be present in the Court at that time, if she thinks fit to do so. However, this Court cannot come to conclusion from this meagre material placed by the applicant that the Civil Suit No. 38-A of 1995 pending before the Court of IV Additional District Judge, Jabalpur should be transferred to Family Court at Bandra, Mumbai for the reasons stated by the applicant in her application for transfer. 6. The application has, therefore, no force and it is dismissed. There shall be no order as to costs.