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Madhya Pradesh High Court · body

2000 DIGILAW 7 (MP)

Jagruti Moyde v. Anil Kumar Moyde

2000-01-03

J.G.CHITRE

body2000
ORDER J.B. Chitre, J. 1. Both the parties have been heard on the points involved in this matter. This petition being related to the matrimonial disputes between the spouses, it is hereby finally decided at this stage so as to avoid possibility of delay in the trials. 2. The petitioner and opponent are married with each other and the petitioner has filed a matrimonial petition for getting a decree for restitution of conjugal rights, however, the respondent-husband had filed a petition for getting the decree of divorce against the present petitioner. The petition for obtaining a decree of restitution of conjugal rights has been filed in the district Court, Indore, however, the petition for decree of divorce has been filed by the respondent-husband in the District Court, Badwani. The date of presentation of the petition for restitution of conjugal rights is 26.2.1997 while the petition which has been filed for getting decree of divorce is dated 10.3.1997. A petition was filed by the present petitioner before the A.D.J., Badwani making a prayer for the transfer of that petition to District Court, Indore where a petition for restitution of conjugal rights' decree is pending for trial. The said petition has been dismissed and, therefore, the present petitioner has appealed to this Court for passing an appropriate order for withdrawing that petition from the Court of A.D.J., Badwani and for transferring it to the D.J. Court, Indore for disposal in accordance with law along with matrimonial petition bearing No. 97/1997. 3. While dealing with such prayer the Court will have to keep in mind provisions of Sections 19 and 21A of Hindu Marriage Act, 1955 as well as provisions of Section 24 of C.P.C. Section 19 of H.M. Act reads thus : "19. 3. While dealing with such prayer the Court will have to keep in mind provisions of Sections 19 and 21A of Hindu Marriage Act, 1955 as well as provisions of Section 24 of C.P.C. Section 19 of H.M. Act reads thus : "19. Court to which petition shall be presented.-Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction- (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive." 4. Provisions of Section 21A of H.M. Act reads as under : "21 A. Power to transfer petition in certain cases- (1) Where- (a) a petition under this Act has been presented to a District Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, Whether in the same District Court or in a different District Court, in the same State or in a different State. the petitions shall be dealt with as specified in Sub-section (2). (2) In a case where Sub-section (1) applies- (a) if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court; (b) if the petitions are presented to different Courts, the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented. (3) In a case where Clause (b) of Sub-clause (b) of Sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court in which the earlier petition is pending, shall exercise its power to transfer such later petition as if it had been empowered to do so under the said Code. 5. Provisions of Section 24, C.P.C. provides as under : 24. General power of transfer and withdrawal- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn; (2) where any suit or proceeding has been transferred or withdrawn under Sub-section 1, the Court which (is thereafter to try or dispose of such suit or proceedings) may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) 'proceeding' includes a proceeding for the execution of a decree or order. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. Therefore, while dealing with this aspect, the Court will have to consider the spirit behind these two enactments. Section 24, C.P.C. provides a wider power however while exercising that, provisions of Section 21A of H.M. Act will have to be kept in mind. The provisions of Section 21A will have to be brought in application harmoniously with Section 24 of C.P.C. and vis-a-vis. It is true that Section 21A deals with petitions, one filed under Section 10 of H.M. Act and another deals with provisions of Section 13 of the same Act. Sub-section (l)(a) makes a reference to Section 13 of H.M. Act on any other ground. The difference is that Section (l)(a) deals with the petitions which are filed in the different Courts of the same district while Sub-section (l)(a) deals with the petitions which are filed in two different districts. The tune of importance to be considered has been tuned by these provisions declaring that the latter petition will have to be transferred to the District Court where earlier petition has been filed. Therefore, these provisions and the spirit behind it will have to be applied by rule of ejusdem generis. The provisions can be put to exercise in application in dealing with different type of petitions also. At that time, the intention to cohabit and keep the matrimonial home intact will have to be given significance because Hindu ideology thinks of a marriage and marriage permanently. Hindu ideology is against breaking of marriage ties. Saptapdi might have been introduced for the purpose of indicating the union of bride and bridegroom for seven previous or future years or may be for the purpose of reminding them of seven steps to be taken before entering a matrimonial life. 6. Therefore, keeping the broader view of provisions of Section 21A, the earlier petition which has been filed for the purpose of securing at decree for restitution of conjugal rights will, have to be given more significance than to a petition which has been filed for disconnecting, dissolving the matrimonial wedlock. 6. Therefore, keeping the broader view of provisions of Section 21A, the earlier petition which has been filed for the purpose of securing at decree for restitution of conjugal rights will, have to be given more significance than to a petition which has been filed for disconnecting, dissolving the matrimonial wedlock. This has to be looked importantly because after wedlock, if the spouses give birth to the children and, thereafter, think of to dissolve the wedlock, there would be a big problem before the society in respect of the children borne out of such wedlock. The society would not approve leaving such destitutes and destimutes left behind by once upon a time wedded spouses. These spouses can afford to peck each other after honey days are over. After honey days in the wedlock are over, those offsprings generated out of those honey days of matrimonial associations cannot be put to hardship, sufferances and uncertain future In view of this social aspect after the importance needs to be given to the petition which has been filed for the purpose of restitution of conjugal rights. 7. In this chauvinist society, some protection has to be given to the weaker section of the society and that is the female wing. When the spouses starts quarrelling with each other, the female is put always to hardship and put to adverse circumstances for the purpose of struggling with the remaining portion of life. In some cases, deserted suckling child or small children are put to hardship. Keeping in view this important aspect of social life, if after filing of the petition for restitution of conjugal rights if the husband files petition for the purpose of getting decree for divorce, the wife has to be given a leaning scale if she makes such transfer petition to the District Court where her earlier matrimonial petition meant for conjugal rights is awaiting trial and hearing. The Court should be always aware of these situations and think to keep this aspect in mind while deciding such transfer application which are revolving around and made by the spouses for the purpose of pushing their cards ahead of each other. This should be the broader outlook of a High Court while deciding these applications. 8. The Court should be always aware of these situations and think to keep this aspect in mind while deciding such transfer application which are revolving around and made by the spouses for the purpose of pushing their cards ahead of each other. This should be the broader outlook of a High Court while deciding these applications. 8. However, so far as present matter is concerned, the situation is very simple because the appellant has forgotten to file the certified copy of the order which has been passed by A.D.J., Badwani. Had that been done, the learned Trial Judge would have been aware of all these things and, therefore, keeping in view these observations of the High Court interpreting the situation, he would have reacted promptly. It appears that he did not do so in view of the submissions advanced by Mr. Joshi for the present appellant. Now by this appeal, the appellant is invoking the wider powers of the High Court in view of provisions of Section 24 as well as provisions of Section 21A of H.M. Act. 9. Thus, this M.C.C. is disposed of by allowing it. Matrimonial petition bearing No. 4/1997 is hereby transferred to the District Court, Indore, for disposal in accordance with law along with Matrimonial Petition No. 97/1997.