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2003 DIGILAW 1169 (BOM)

Yogini Umesh Chivhane v. Umesh Uttamrao Chivhane

2003-11-12

S.T.KHARCHE

body2003
JUDGMENT - KHARCHE S.T., J.:-Rule. Rule is made returnable forthwith. Heard finally with the consent of the parties. 2. The learned Counsel for the applicant/wife contended that the wife has filed Hindu Marriage Petition No. 27 of 2003 for divorce at Kelapur on 30-7-2003 whereas the non-applicant/husband has filed Hindu Marriage Petition No. 68 of 2003 on 29-7-2003 in the Court of Civil Judge, Sr. Dn., Wardha. He contended that in order to avoid conflicting decisions, it is desirable that both the petitions should be tried together. He further contended that it would be convenient for the wife to attend the Court at Kelapur. The wife has also no independent source of income for maintaining herself. Therefore, in the circumstances, the petition for divorce filed by the husband be transferred from Wardha to Kelapur. In support of his contentions he relied on the Single Judges decision of this Court in (Anisha Sanjay Hinduja v. Sanjay Shrichand Hinduja)1, 2003(Supp.) Bom.C.R. 802 , and the two decisions of Apex Court in (Sumita Singh v. Kumar Sanjay another)2, A.I.R. 2002 S.C. 396, and in the case of (Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry)3, A.I.R. 1981 S.C. 1143. 3. Mr. Modak, learned Counsel, for the husband contended that by virtue of the powers under section 21-A of Hindu Marriage Act, 1955 (for short the Act) if the petitions are to be transferred then the procedure laid down under sub-section (3) of section 21-A of the Act has to be followed. He contended that the petition for divorce has been filed by the husband in the Court of Civil Judge, Sr. Dn., Wardha on 29-7-2003 and since the petition is filed earlier in point of time, the petition for divorce filed by the wife on the subsequent date, i.e. on 30-7-2003, can be transferred to the Court at Wardha as per the mandate of sub-section 2(b) of section 21-A of the Act. 4. I have careful considered the contentions canvassed by the learned Counsel for the parties. 4. I have careful considered the contentions canvassed by the learned Counsel for the parties. Section 21-A of the Act is reproduced here for the sake of convenience, which reads as under : "21-A. Power to transfer petitions 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 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 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 powers to transfer such later petition as if it had been empowered so to do under the said Code." 5. The Apex Court had an occasion to deal with section 21-A of the Act in the case of Guda Vijayalakshmi, cited (supra), wherein it is held that the provisions of section 21-A of the Act are not exhaustive and the Court can exercise and take resort to the provisions of sections 23 to 25 of the code of Civil Procedure for directing transfer of the petitions for consolidated hearing. It was further held be the Apex Court that where a wife filed petition for judicial separation under section 10 of the Act and by the husband for restitution of conjugal rights under section 9 in courts in two different States, it will invariably be expedient to have a joint or consolidated hearing or trial of both the petitions by one and the same Court in order to avoid conflicting decisions being rendered by two different courts and in such a situation resort will have to be had to the powers under sections 23 to 25 of the Code of Civil Procedure for directing transfer of the petitions for a consolidate hearing. 6. The aforesaid ratio can be made applicable to the facts and circumstances of the present case where the wife seeks transfer of the marriage petition filed by the husband for divorce at Wardha for trial along with the petition filed by her in the Court at Kelapur. It is obvious that in the matrimonial proceedings when the wife is living separately and taking shelter at her parents house she is placed in inconvenient position and circumstances and, therefore, it is desirable that the petition filed by the husband for divorce be transferred to a place where the petition has been filed by the wife seeking the relief of divorce. 7. In the present case, the wife not only instituted the petition for divorce in the Court at Kelapur, she has also filed an application claiming maintenance under section 125 of the Code of Criminal Procedure on 18-8-2003 at Ghatanji. Her parents live at Ghatanji and, therefore, it would be convenient for her to attend the proceedings of divorce petition filed by the husband at Kelapur and the ends of justice would be met if the Hindu Marriage petition filed by the husband at Wardha is transferred to the Court of Civil Judge, Sr. Dn., Kelapur. 8. In the result, the present Mise. Civil Application is allowed and Hindu Marriage Petition No. 68 of 2003 filed by the husband for divorced at Wardha stands transferred to the Court of Civil Judge, Sr. Dn., Kelapur, for disposal in accordance with law. The Civil Judge, Sr. Dn., Kelapur, is directed to hear both the petitions by consolidating the same and dispose of the same according to law. Rule is made absolute in the aforesaid terms. Application allowed. -----