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2015 DIGILAW 995 (ALL)

Hemant Kumar v. Priyadarshini Srivastava

2015-04-27

ADITYA NATH MITTAL

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JUDGMENT Aditya Nath Mittal, J. Heard learned counsel for both the parties and perused the record. 2. This petition has been filed with the prayer to transfer the Suit No.141 of 2014 (Priyadarshani Srivastava vs. Hemand Kumar), under Section 9 of Hindu Marriage Act and Misc. Case No.22 of 2014 (Priyadarshani Srivastava vs. Hemant Kumar), under Section 24 of Hindu Marriage Act, pending in the Family Court, Raebareli to District Court at Allahabad. 3. In support of the application, the petitioner has not filed any affidavit but the affidavit of his father has been filed. The main ground taken for transfer of the aforesaid petition is that when the applicant and his father went to District Court, Raebareli to inquire about the aforesaid cases, three persons stopped them near the district court, opposite to the Government Inter College compound, rebuked and misbehaved with them. The applicant and his father were abused and threatened not to come to Raebareli for attending the aforesaid cases; otherwise they have to face dire consequences, and will not return to Allahabad. The applicant lives at Hyderabad and it is difficult for him to attend the cases at every date and therefore his father has to do pairvi of the case. He is an old man aged about 73 years and it is highly difficult for him to attend the court at Raebareli on every date where he also apprehends the threat of his life and mall treatment by the respondent and her family members and associates, who are highly influential persons, having relations to the criminal and antisocial elements. 4. Learned counsel for the petitioner has submitted that the Civil Procedure Code applies to the proceedings under Hindu Marriage Act and the divorce petition has been filed at Allahabad, which is Petition No.1554 of 2013 and that has been filed on 29.11.2013. Therefore, the proceedings under Section 9 and Section 24 of Hindu Marriage Act should have been stayed under Section 10 C.P.C. till the disposal of the divorce petition. It has also been submitted that the said petition under Section 9 of Hindu Marriage Act and other complaint under Section 156 (3) Cr.P.C. have been filed on wrong facts. Therefore, the proceedings under Section 9 and Section 24 of Hindu Marriage Act should have been stayed under Section 10 C.P.C. till the disposal of the divorce petition. It has also been submitted that the said petition under Section 9 of Hindu Marriage Act and other complaint under Section 156 (3) Cr.P.C. have been filed on wrong facts. It has also been submitted that in view of the provisions of Section 21-A (2) (b) of Hindu Marriage Act, the respondents could have filed the counter claim instead of filing separate petition under Section 9 of Hindu Marriage Act. 5. On the other hand, learned counsel for the respondents has opposed the prayer for transfer of petition and has submitted that the petitioner is trying to defy the process issued by the court in the petition under Section 9 as well as application under Section 24 of of Hindu Marriage Act. It has also been submitted that the respondent has been ousted from the house due to demand of dowry. It has also been submitted that the story as narrated in para-20 of the petition is concocted and has no legs. 6. As far as submission of learned counsel for the petitioner that the provisions of C.P.C. apply to the proceedings under Hindu Marriage Act is concerned, there is no dispute that the provisions of C.P.C. apply to the said proceedings. But as far as the submission of learned counsel for the petitioner that the proceedings under Section 9 and the application under Section 24 of Hindu Marriage Act should be stayed under Section 10 C.P.C., I do not find any substance in the submission of learned counsel for the petitioner because the proceedings under Section 13 of Hindu Marriage Act as well as the proceedings under Section 9 of Hindu Marriage Act are different proceedings and they cannot be said to come within the ambit of Section 10 C.P.C. 7. As far as the submission of learned counsel for the petitioner regarding the provisions of Section 21-A of Hindu Marriage Act is concerned, that provision does not say anything about the counter claim, but the provisions of Section 21-A applies to the proceedings under Section 10 and the proceedings under Section 13 of the Hindu Marriage Act. The proceedings under Section10 are regarding the judicial separation while the proceedings under Section 13 are regarding the divorce. 8. The proceedings under Section10 are regarding the judicial separation while the proceedings under Section 13 are regarding the divorce. 8. In the present petition, nothing has been said that the proceedings under Section 10 of Hindu Marriage Act for judicial separation are also pending between the said parties. The provisions of Section 21-A do not apply to the proceedings under Section 9 of Hindu Marriage Act. In Priyavari Mehta vs. Priyanath Mehta reported in AIR 1980 Bom. 337, the same view has been taken that petition under Section 9 is not covered by Section 21-A. The submission of learned counsel for the petitioner is wholly misconceived. 9. As far as the grounds taken in para-20 of the petition that three persons had stopped the father of the petitioner near district court and he was abused and threatened is concerned, in the matrimonial disputes such allegations are made generally and I do not find any substance in the said allegations for transfer of the case from Raebareli to Allahabad. If somebody has abused or threatened the father of the petitioner, his father may take recourse to law but that cannot be a ground to transfer the case. 10. Whether the allegations of application under Section 156 (3) Cr.P.C. are false or correct and whether the allegations of torture, demand of dowry, cruelty etc. are true or not, is not to be adjudicated in this petition for transfer of case and the concerned courts of competent jurisdiction will decide the same. 11. As far as the grounds that the applicant lives at Hyderabad, therefore, he cannot attend the case at Raebareli is also misconceived because the distance of Allahabad and Raebareli is not so far that the petitioner or his father cannot attend the court proceedings. Basically, it is duty of the petitioner to do the pairvi of the case and ground of old age of his father for attending the court cannot be said to be valid ground for transferring the case from one place to another. The petitioner can very well engage his counsel to attend the case and can do the effective pairvi but in any case, he has also to attend the court personally, as and when required. 12. The petition is wholly misconceived and appears to have been filed just to harass the wife-respondent, who is residing separately from the petitioner at Raebareli. The petitioner can very well engage his counsel to attend the case and can do the effective pairvi but in any case, he has also to attend the court personally, as and when required. 12. The petition is wholly misconceived and appears to have been filed just to harass the wife-respondent, who is residing separately from the petitioner at Raebareli. The petition is dismissed with the cost of Rs.2000/- payable to the respondent-wife within ten days from today, failing which, it shall be recoverable as arrears of land revenue from the petitioner.