Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 53 (JK)

Pallvi Tickoo v. Dinesh Dhar

2013-02-01

M.M.KUMAR

body2013
1. This is an application filed by an estranged wife Smt. Pallvi Tickoo, with a prayer that the petition, filed by her husband Sh. Dinesh Dhar, under Section 13 of the Hindu Marriage Act (hereinafter called the Act), for dissolution of marriage, may kindly be ordered to be transferred from the Court of Additional District Judge (Matrimonial cases), Jammu, to any other Court of competent jurisdiction at Kathua. 2. It has come on record that the marriage between the parties was solemnized at Shiva Nagar, Ward No. 16, Kathua, on 9th of Dec. 10. According to the averments made by the estranged wife, the relationship between the parties got soured because the respondent-husband started behaving arrogantly. By mid July 11, he completely abandoned her and withdrew from her society without any reasonable cause. Accordingly, she joined back with her parents in July 2011, and is residing with them since then. All efforts made by her for resolution of dispute between them have failed, which resulted in filing of a petition on 29th of Dec. 11, under Section 9 of the Act, for a decree of restitution of conjugal rights, in the Court of District Judge, Kathua. The Court has already issued process to the respondent-husband who has appeared before the learned Court at Kathua. 3. As a counter-blast to the aforesaid petition for restitution of conjugal rights filed by the petitioner-wife, the respondent-husband has filed a petition under Section 13 of the Act on 24th of March 12, in the Court of learned Additional District Judge (Matrimonial Cases), Jammu, which is registered as File No. 665 H.M.A. 4. Therefore, a prayer has been made that the later petition filed by the respondent-husband may be ordered to be transferred to Kathua, as per the provisions of Section 24 of the Act. Despite service on the father respondent-husband Sh Bhola Nath Dhar, on two occasions, respondent-Dinesh Dhar has failed to appear. Therefore, I have proceeded to hear Mr. V.B. Gupta, learned counsel for the petitioner-wife. 5. Learned counsel for the petitioner has submitted that the petitioner-applicant is a young girl of 26 years of age and belongs to a Migrant family. It has been urged that the petitioner along with her parents is residing in Kathua, in a most precarious condition without any financial support. V.B. Gupta, learned counsel for the petitioner-wife. 5. Learned counsel for the petitioner has submitted that the petitioner-applicant is a young girl of 26 years of age and belongs to a Migrant family. It has been urged that the petitioner along with her parents is residing in Kathua, in a most precarious condition without any financial support. Accordingly, she would not be able to come all alone from Kathua to Jammu, which is at a distance of about 100 kms. Mr. Gupta, has also argued that in accordance with the provisions of Section 24(2)(b) of the Act, the later petition filed by the respondent-husband, has to be heard with the first petition and once the respondent is attending the hearing of first petition at Kathua, then, he can also prosecute his petition under Section 13 at Kathua. 6. I have thoughtfully considered the submission made by Mr. Gupta, learned counsel for the petitioner. It would be appropriate to read Section 24 of the Act, which is set below in extenso: 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, the petition 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 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, Svt. .’ (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, Svt. 1977 to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court hi which the earlier petition is pending shall exercise its power to transfer such later petition as if it had been empowered so to do under the said Code. 7. A perusal of the aforesaid provision would show that if the first petition has been presented before a District Court having jurisdiction, by a party to marriage, then, the second petition, later in point of time, if filed in a different district, must be transferred to the District Court in which the earlier petition was presented so that both the petitions are heard together and disposed of by one order. Sub-section 3 of Section 24 of the Act, makes it further clear that where Clause (b) of sub-section (2) applies, then, the proceedings in the later petition be transferred where the earlier petition is pending. On this score alone, the petition filed by the respondent-husband being later in point of time, is liable to be transferred from Jammu to the same Court where the earlier petition filed by the petitioner-wife is pending. Even otherwise, the convenience of the petitioner-wife has to be preferred as she is dependent on her parents. It would, therefore, be easier for respondent-husband to attend the proceedings at Kathua, than the applicant to attend the same at Jammu. In that regard, I place reliance on the observations made by the Hon’ble Supreme Court of India in the case reported as Deepti Bhandari v. Nitin Bhandari and Anr., AIR 2012 SC 326 . 8. For the reasons aforementioned, this petition succeeds. The Principal District Judge, Jammu, is directed to send the paper book along with all proceedings in the case titled as Dinesh Dhar v. Pallvi Tickoo registered as File No. 665 HMA, pending before the learned Additional District Judge (Matrimonial cases), Jammu, to the Court of Principal District Judge, Kathua, who shall entrust the same to the Court of learned Additional District Judge, Kathua, where the petition filed by the petitioner-wife under Section 9 of the Act is pending, so that both the petitions are heard together. Parties through their counsel are directed to appear before the learned Principal District Judge, Kathua, on 18th of Feb. 13. Petition allowed.