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2003 DIGILAW 115 (CAL)

CHERYL ANN PETERSON v. ERIC JACOB PETERSON

2003-03-13

SUBHRO KAMAL MUKHERJEE

body2003
SUBHRO KAMAL MUKHERJEE, J. ( 1 ) AFFIDAVIT-OF-SERVICE filed in court today is to be kept with the record. None appears to oppose this application. ( 2 ) AS prayed for by the learned advocate, appearing for the petitioner, leave is granted to the learned advocate for the petitioner to convert this application under section 115 of the Code of Civil procedure into an application under Article 227 of the Constitution of india, direct the learned advocate for the petitioner to correct the valuation statement in the preamble of this application. ( 3 ) I am informed by the learned advocate, for the petitioner, that the deficit court fees have been put in on March 12, 2003 under filing no. A- 3260. ( 4 ) BY the order impugned dated April 8. 2002 Shri P. K. Chakraborty, the learned Additional District Judge, Eleventh Court at alipore District: South 24 Parganas rejected the prayer of the wife, the petitioner in this application, for analogous hearing of two matrimonial suits. ( 5 ) THE relevant facts, which are necessary for disposal of this application are summarised as under: (A) the wife instituted Matrimonial Suit no. 38 of 1999 in the court of the learned District Judge at alipore, District : South 24 parganas for divorce under Sections 27 (b) and (d) the Special marriage Act, 1954; (B) eventually the said Suit No. 38 of 1999 has been transferred to the court of the learned Additional district Judge, Eleventh Court at alipore, District : South 24 parganas and has since been renumbered as Matrimonial Suit No. 28 of 1999; (C) subsequently, the husband instituted Matrimonial Suit No. 101 of 1999 in the court of the learned district Judge at Alipore, District: south 24 Parganas against the wife for judicial separation under section 23 of the said Special marriage Act, 1954; (D) the said Matrimonial Suit No. 101 of 1999 has also, been transferred to the court of the learned Additional District Judge, Eleventh court at Alipore, District : South 24 Parganas and has been renumbered as Matrimonial Suit No. 29 of 1999; (E) both the aforesaid suits are pending ajudication before the learned additional District Judge, Eleventh court at Alipore, District : South 24 Parganas; (F) on February 8, 2001 the wife, who is the plaintiff in Matrimonial Suit no. 38 of 1999, since renumbered as Matrimonial Suit No. 28 of 1999, applied for analogous hearing of both the said suits; (G) by order impugned the learned Additional District Judge rejected the said application for analogous hearing with the observations that the subject matters of both the suits were not identical. ( 6 ) UNDER section 27 of the Special Marriage Act, 1954 a husband or a wife may present an application for divorce to the district court having jurisdiction on any one or more of the grounds mentioned in sub-section (1) of the said Section. Sub-section (1a) of the section gives right to a wife to present an application for dissolution of marriage to the said court on two more additional grounds. ( 7 ) UNDER section 23 of the said Act a husband or a wife may present a petition for judicial separation to the said court, inter alia, on any of the grounds specified in sub-sections (1) and (1a) of Section 27 of the said Act. ( 8 ) SECTION 27a of the said Act provides that in any proceeding under the said Act, on a petition for dissolution of marriage by decree of divorce, except so far as the petition is founded on the ground mentioned in Clause (h) of sub-section (1) of Section 27 the court may, if it considers it just so to do, having regard to the circumstances of the case, pass instead a decree for judicial separation. ( 9 ) SECTION 40a of the said Act runs as under:"40a Power to transfer petitions in certain cases.- (1) Where (a) a petition under this Act has been presented to the District Court having jurisdiction by a party to the marriage praying for a decree for judicial separation under Section 23 or for a decree or divorce under Section 27, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under section 23 or, for decree of divorce under Section 27 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 petition shall be dealt. with as specified in sub-section (2 ). 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 District 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 subsection (2) applies, the Court or the government, as the case may be, competent under the Code of Civil procedure, 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 powers to transfer such later petition as if it has been empowered so to do under the said Code. " ( 10 ) MY reading of the provisions of Section 40a of the said Act is that when both the parties present separate applications in the same district court, those applications should be heard together. In the event, however, the applications are presented in different district courts, in such a situation the trial will be held before the court where the first application has been filed. ( 11 ) THEREFORE, the learned judge in the trial court failed to exercise a jurisdiction vested in him by law in rejecting the application for analogous hearing of the said suits proceeding on misconception that the subject matters of the suits were different. The Act provides for hearing of two matrimonial suits pending between the parties together. The learned judge, thus, in rejecting the application for analogous hearing filed by the wife committed a serious injustice. ( 12 ) THEREFORE, the order impugned is set aside. The learned trial judge is directed to hear both the suits being Matrimonial Suit No. 28 of 1999 and Matrimonial Suit No. 29 of 1999 together. The learned judge must dispose of the said suits as early as possible. ( 13 ) THE revisional application is, thus, allowed without, however, anyorder as to costs. The learned trial judge is directed to hear both the suits being Matrimonial Suit No. 28 of 1999 and Matrimonial Suit No. 29 of 1999 together. The learned judge must dispose of the said suits as early as possible. ( 13 ) THE revisional application is, thus, allowed without, however, anyorder as to costs. ( 14 ) OFFICE is directed to communicate this order to the court concerned by a special messenger at the cost of the petitioner and such cost is to be deposited by Monday next. Revision allowed.