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Rajasthan High Court · body

2023 DIGILAW 1875 (RAJ)

Sapna Prajapat W/o Mukesh Prajapat v. Mukesh Prajapat S/o Sh. Ganesh Ram Prajapat

2023-10-04

MADAN GOPAL VYAS

body2023
JUDGMENT : The present transfer applications preferred by the wife (SB Civil Transfer Petition No.164/2023) and husband (SB Civil Misc Transfer Application No.257/2022) are filed under Section 24 read with Section 151 of CPC. Since the issue in both the transfer petitions is same, therefore they are being decided by this common judgment. 2. Brief facts necessary for the disposal of transfer petitions are that the marriage between the parties was solemnized on 30.04.2015 according to Hindu rites and rituals at Pali. After marriage, the wife started living with her husband at Jodhpur. A girl child was born out of their wedlock in 2016. Certain differences arose between the couple and the husband filed an application under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (HMA, for short) for dissolution of marriage before the learned Family Court No. 1, Jodhpur Metropolitan on 17.02.2022. Subsequently, the wife preferred a divorce petition under Section 13 read with Section 25 of HMA before the learned Family Court, Pali on 25.03.2022. Both the parties have approached this Court praying for transfer of proceedings initiated by the other spouse to the place where their application is pending. 3. In SB Civil Transfer Petition No.164/2023-the wife prays that the Civil Case No.158/2022 preferred by the husband before the learned Family Court No.1, Jodhpur may be transferred to the Family Court, Pali as the divorce petition under Section 13 and 25 of the HMA filed by her is already pending adjudication before the learned Family Court, Pali. 4. Learned counsel for the wife argued that it is not possible for her to travel with a minor girl to Jodhpur on each and every date of hearing. The distance from Pali to Jodhpur is approximately 136 kms. It is further submitted that the wife is an unemployed woman having financial constraints and, therefore, it is even more difficult for her to travel to Jodhpur to attend proceedings on each and every date of hearing fixed by the trial court. Thus, it is prayed that the petition filed by the husband under Section 13(1) (ia)(ib) of the HMA for dissolution of marriage may be transferred to the Family Court, Pali. 5. SB Civil Misc. Transfer Petition No.257/2022 preferred by the husband is against the order dated 23.08.2022 passed by the learned Family Court, Pali in Civil Misc. Thus, it is prayed that the petition filed by the husband under Section 13(1) (ia)(ib) of the HMA for dissolution of marriage may be transferred to the Family Court, Pali. 5. SB Civil Misc. Transfer Petition No.257/2022 preferred by the husband is against the order dated 23.08.2022 passed by the learned Family Court, Pali in Civil Misc. Case No.58/2022 whereby the learned Family Court, Pali rejected the application filed by the husband under Section 21A(2)(b) of the HMA seeking transfer of the petition preferred by the wife under Section 13 and 25 of the HMA from the Family Court, Pali to Family Court No.1, Jodhpur Metropolitan, Jodhpur. 6. Learned counsel for the husband submits that after the application under Section 13(1)(ia)(ib) of the HMA was presented on 17.2.2022 in the Family Court No.1, Jodhpur Metropolitan, Jodhpur, notices were issued to the wife. The notices were duly served and the wife is regularly appearing in the said case. When he came to know about the fact that the wife has filed divorce petition under Section 13 and 25 of the HMA before Family Court, Pali on 25.3.2022 being Civil Misc. Case No.58/2022, he preferred an application under Section 21A(2)(b) of the HMA before the Family Court, Pali for transferring the proceedings and record of the Case No.58/2022 from Family Court, Pali to Family Court No.1, Jodhpur. The learned Family Court, Pali without considering the contents of the application in its right perspective, rejected the same vide impugned order dated 23.08.2022. 7. Learned counsel for the husband submits that the learned Family Court, Pali failed to consider the provisions of Section 21A(2)(b) of the HMA, which provides that subject to sub section (1) of Section 21, 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. It is submitted that it is an admitted position that the husband has preferred the petition for dissolution of marriage on 17.02.2022 and the wife has preferred the divorce petition on 25.03.2022, i.e., after approximately 53 days. It is submitted that it is an admitted position that the husband has preferred the petition for dissolution of marriage on 17.02.2022 and the wife has preferred the divorce petition on 25.03.2022, i.e., after approximately 53 days. Thus, as per the provisions of Section 21A(2)(b) of the Hindu Marriage Act, the divorce petition filed by the wife deserves to be transferred from Family Court, Pali to Family Court No.1, Jodhpur and both the petitions deserve to be heard and decided by the Family Court No.1, Jodhpur Metropolitan, Jodhpur. Lastly, it is prayed that the divorce petition preferred by the wife may be transferred from family Court, Pali to the Family Court No. 1, Jodhpur Metropolitan, Jodhpur 8. Learned counsel for the husband further submits that there would be more hardship for the husband in attending proceedings on each and every date of hearing fixed by the Family Court, Pali as he is suffering from spinal cord disease from the year 2019 and he is undergoing treatment for the same. It is also submitted that the husband is also physically handicapped and the competent authorities have already issued him disability certificate certifying that he is having 40% temporary physical impairment in his lower left limb. Therefore, it is prayed that the transfer petition filed by him may be allowed and the petition filed by the wife for divorce may be transferred from Family Court, Pali to Family Court No.1, Jodhpur. 9. Heard the learned counsel for the respective parties and perused the material available on record. 10. Before proceeding further, it is pertinent to consider that whether the power of this Court under Section 24 of the Civil Procedure Code to transfer a suit or an appeal or other proceeding applies to an application for divorce filed under Section 13 of the Hindu Marriage Act or not. 11. For the sake of convenience, Section 24 of CPC is reproduced as under: "Section 24 - General power of transfer and withdrawal. 11. For the sake of convenience, Section 24 of CPC is reproduced as under: "Section 24 - General power of transfer and withdrawal. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) proceeding includes a proceeding for the execution of a decree or order]. (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it." From a careful reading of Section 24, CPC, it follows that the powers under Section 24 are very wide and general in nature. Section 24 is discretionary provision wherein the powers can be exercised by a District Court or High Court with respect to suits, appeals and other proceedings. As a result, applications under the Hindu Marriage Act are governed by the provisions of Section 24, CPC which prima facie includes a divorce petition as well. Section 24 is discretionary provision wherein the powers can be exercised by a District Court or High Court with respect to suits, appeals and other proceedings. As a result, applications under the Hindu Marriage Act are governed by the provisions of Section 24, CPC which prima facie includes a divorce petition as well. It is also relevant to observe that transfer in cases pertaining to judicial separation and divorce is also governed by Section 21A of the Hindu Marriage Act. Section 21A of HMA reads as under: "21A-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 for 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 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 to the same District Court, both the petitions shall be tried and heard together by the 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 Civil Procedure Code, 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." 12. Now the question that remains to be decided is whether the general provisions for transfer contained in Section 24 of the CPC are applicable to divorce proceedings initiated under the HMA or not, especially when there is special provision for transfer contained in Section 21A of the Hindu Marriage Act. 13. The meaning and purpose of Section 21A of the Hindu Marriage Act is to avoid conflicting decisions of competent Courts. Whereas Section 24 of CPC is discretionary in nature, Section 21A on the other hand, is absolute. It is a settled legal proposition that in case of conflict between a general law and a special law, the special law prevails. Section 21A of the Hindu Marriage Act takes away discretion from the Court and by use of the word "shall', mandatorily directs the appropriate Court or Government to consolidate for trial two applications filed separately by the husband and wife seeking divorce or judicial separation by transferring the application filed later in point of time to the Court where a similar first application is filed and is pending. Section 21A HMA does not leave any discretion either to the parties or to the Court in matters relating to transfer enumerated therein. However, the transfer of all the cases under the Hindu Marriage Act is not governed by Section 21A HMA. In such cases, the general provisions enumerated in Section 24 of CPC are applicable. Invoking powers under Section 24 CPC depends majorly on the will of parties. However, Section 21A of HMA is compulsive in nature. It is for the Court itself to exercise the power and transfer the suit in appropriate cases. It does not even require any party to file an application. The rationale behind Section 21A HMA is based upon public policy of avoiding conflicting decisions of competent Courts. 14. As I have pointed out above, Section 24 of CPC confers a discretionary power on the Court. A Court acting under Section 24 of the CPC may or may not in its judicial discretion transfer a particular subsequent application to be tried along with a particular earlier application. Section 21A of the Hindu Marriage Act casts a mandatory duty on the Court with respect to the situations enumerated therein. 15. It is undoubtedly the prerogative of the Courts to prevent the abuse of judicial process. Section 21A of the Hindu Marriage Act casts a mandatory duty on the Court with respect to the situations enumerated therein. 15. It is undoubtedly the prerogative of the Courts to prevent the abuse of judicial process. In the present case, first the husband preferred a petition for dissolution of marriage before the learned Family Court No.1, Jodhpur and then the wife preferred divorce petition at Family Court, Pali. In view of the statutory provision and the discussion thereof made above, I direct that petition preferred subsequently by the wife deserves to be transferred to the Court where the earlier petition was preferred by the husband. 16. The High Court of Andhra Pradesh in T. Ramadevi v. TV Subrahmanyam, reported in MANU/SC/0173/1982 has taken a similar view of the matter. It has been held that Section 21A of HMA is not inconsistent with the provisions of Section 24 of CPC. 17. In view of the above, the impugned order dated 23.08.2022 passed by learned Family Court, Pali in Civil Misc. Case no. 58/2022 is quashed and set aside. The transfer petition preferred by the wife (SBCTA No.164/2023) is dismissed and the transfer petition preferred by the husband (SBCTA No.257/2022) is allowed. 18. It is ordered that the Civil case No.58/2022 (Sapna Vs. Mukesh) under Section 13 and 25 of the Hindu Marriage Act 1955, pending before the Family Court, Pali be transferred to the Family Court No.1, Jodhpur Metropolitan, Jodhpur. 19. The learned Family Court, Pali is directed to send the record of the case to Family Court No.1, Jodhpur Metropolitan, Jodhpur. 20. Both the parties are directed to appear before Family Court No.1, Jodhpur Metropolitan, Jodhpur on 16.10.2023. 21. Learned Family Court No.1, Jodhpur Metropolitan, Jodhpur is directed to expedite the trial of the cases.