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2015 DIGILAW 642 (MP)

Balvir Singh Gurjar v. Nitu

2015-06-23

SUJOY PAUL

body2015
JUDGMENT : Sujoy Paul, J. 1. Since similar question of law is involved, these petitions were analogously heard on joint request and decided by this common order. M.C.C. No. 364/2012: 2. This petition is filed by the husband under sections 22, 23 and 24 of Code of Civil Procedure for transferring Case No. 67/2012 (Restitution) filed by the wife. The said case is filed before Additional District Judge, Morena. It is prayed that same be transferred to Gwalior. M.C.C. No. 253/2013: 3. This petition is filed under section 24 of the Code of Civil Procedure by the wife. It is prayed that Case No. 349/2012 (New No. 199A/2012) filed under section 13 of Hindu Marriage Act, 1955 (for short, the 'Act') be transferred from Gwalior to Morena. 4. Admittedly, the husband has filed the case under section 13 of the Act prior in time. The wife filed petition for restitution of conjugal right later on. 5. Shri S.S. Chauhan, learned counsel for the petitioner relied on section 21A of the Act. He submits that the petition of wife be transferred to Gwalior. He also relied on : AIR 2008 Rajasthan 111 (Prakash v. Smt. Kavita). 6. Per Contra, Shri RVS Ghuraiya contends that in section 21A of the Act, the petitions filed under sections 10 and 13 of the Act are covered. Section 21A does not deal with the proceedings under section9 of the Act. Thus, there is no scope of transfer of wife's petition to Gwalior. He by relying on : 2010 (2) MPLJ 633 (Saroj Devi Kushwaha v. Satendra Singh Kushwaha) and : 2010 (4) MPLJ 391 (Jyoti Bangde v. Sanjay Bangde), submitted that in matrimonial dispute, the balance of convenience is to be seen. In the matter of difficulty and convenience, the women require more consideration in comparison of men. 7. I have bestowed my anxious consideration on rival contentions of the parties and perused the record. 8. No doubt, in section 21A of the Act, the law-makers have not included proceedings under section 9 of the Act. Section 21A deals with the proceedings preferred under sections 10 and 13 of the Act. However, this aspect was considered by the Apex Court in : AIR 1981 SC 1143 (Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry). 8. No doubt, in section 21A of the Act, the law-makers have not included proceedings under section 9 of the Act. Section 21A deals with the proceedings preferred under sections 10 and 13 of the Act. However, this aspect was considered by the Apex Court in : AIR 1981 SC 1143 (Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry). The Apex Court has considered the judgment of Nagpur Bench of Bombay High Court in Priyavari Mehta v. Priyanath Mehta ( AIR 1980 Bom 337), which was delivered on the strength of decision of Punjab & Haryana High Court in Smt. Rama Kanta v. Ashok Kumar, AIR 1977 Punj & Har 373. The Nagpur Bench after taking into account section 21A of the Act opined that "the effect of section 21A is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under sections 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section. Precisely, this is the argument of Shri Ghuraiya in the present case. The Apex Court in Guda Vijayalakshmi (supra) opined that this view is not correct. It is held that "as stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof Section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial, "in certain cases". Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court, of a husband's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under Section 9 of the Act and the wife's petition for judicial separation against her husband on ground of cruelty under Section 10 of the Act in order to avoid conflicting decisions being rendered by two different Courts. In such a situation resort will have to be had to the powers under Sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading Section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided. In such a situation resort will have to be had to the powers under Sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading Section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided. In this view of the matter, the preliminary objection is overruled. Divorce case No. 28 of 1980 pending in the District Court Udaipur, Rajasthan, is transferred to the District Court Elura (A.P.) to which Court the wife's petition for maintenance shall also stand transferred. No order as to costs." In Prakash (supra), the Division Bench of Rajasthan High Court opined that "in the Hindu Marriage Act, Section 21A provides for deciding two petitions, if filed by one party under Section 13 for divorce and filed by another party under Section 10 for judicial separation or vice versa then both the petitions are required to be tried and required to be heard together. The same principle is required to be followed when one party to marriage files petition under Section 13 and another files petition under Section 9 of the Hindu Marriage Act because of the simple reason that the two matters cannot be decided separately. Reason for it is that if the Court will proceed to decide two matters separately then the Court is bound to decide the two matters separately and on the basis of evidence available on record of each case and cannot consider the evidence recorded in one case and another case. In that situation, if one party successfully proves his/her case in one petition and failed to adduce evidence in another case then there will be two contradictory decrees. When there are cross-petitions, one under Section 9 and another under Section13, then either of the petition can be allowed and not both the petitions. The two petitions, one under Section 13 and another under Section 9 of the Hindu Marriage Act in fact are inseparable and therefore, cannot be decided separately." A Division Bench of Bombay High Court in : (2010) 1 Bom CR 226 (Sanjeev Indravadan Dani v. Mrs. Rupal Sanjeev Dani) has taken the same view. The two petitions, one under Section 13 and another under Section 9 of the Hindu Marriage Act in fact are inseparable and therefore, cannot be decided separately." A Division Bench of Bombay High Court in : (2010) 1 Bom CR 226 (Sanjeev Indravadan Dani v. Mrs. Rupal Sanjeev Dani) has taken the same view. A.M. Khanwilkar, J. (as His Lordship then was) in the said case opined that "the Supreme Court has interpreted the purport of section 21-A to mean that it cannot be regarded as exhaustive; for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases". It is profitable to note that in case of Sanjiv Indravadan Dani (supra), one petition was filed by husband for restitution of conjugal right whereas another petition was filed by the wife seeking divorce on the ground of cruelty and desertion. 9. In view of aforesaid legal position, it can be safely concluded that the point involved in this matter is no more res integra. Section 21-A covers the cases filed under section 9 of the Act. Thus, by operation of section 21 of the Act, the subsequent petition must be transferred. 10. So far the judgments cited by Shri Ghuraiya are concerned, in the said cases, the statutory provision under section 21-A and the aforesaid judgment of Supreme Court in Guda Vijayalakshmi (supra) was not considered. Thus, the said judgments cited by Shri Ghuraiya are distinguishable. Same are of no assistance in the facts and circumstances of the present case. 11. As analyzed above, MCC No. 364/2012 is allowed. The court below is directed to transfer Case No. 67/2012 (Restitution) (Smt. Neetu v. Rinku @ Balvir Singh) pending in the Court of Fourth Additional District Judge, Morena to Family Court, Gwalior.. The said Court shall try both the matters, i.e., Case No. 67/12 (Restitution) and 349/12 (New No. 199A/2012) simultaneously. 12. Accordingly, MCC No. 253/2013 is dismissed. 13. Petitions are disposed of.