Sarita Rangare vs Satish Rangare

Sanjay K. Agrawal, J

The question to be considered and decided in this transfer petition is whether in exercise of jurisdiction u/s 24 of the Code of Civil Procedure, 1908 (in short ''CPC'') the application for divorce filed by the husband at a later point of time can be transferred to the Court where the application for conjugal rights filed by wife at an early point of time is pending consideration for joint and consolidated trial? This is a transfer petition u/s 24 of the CPC seeking transfer of Case No. 89-A/2013 (Satish Kumar Rangare v. Smt. Sarita Gajmiye (Rangare), pending in the Court of Principal Judge, Family Court, Dhamtari to the Court of Principal Judge, Family Court, Durg.

The facts in nutshell, necessary for adjudication of this petition are as under:

2.1 The marriage of Smt. Sarita Rangare applicant herein was solemnized with the non-applicant Satish Rangare on 24/2/2012, and immediately thereafter, in April 2013, the dispute and differences arose between the parties, leading to filing of the application u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights on 7/5/2013 by applicant/wife before the Court of Principal Judge, Family Court, Durg, which was registered as Case No. 330-A/2013, and summon was issued to the non-applicant/husband. On 13/5/2013, the applicant/wife has also filed a complaint against non-applicant/husband for the offence punishable u/s 498-A of the Indian Penal Code.

2.2 Thereafter, on 12/6/2013, non-applicant/husband filed an application u/s 13(1) of the Hindu Marriage Act, 1955 for divorce before the Principal Judge, Family Court, Dhamtari, which was registered as Case No. 89-A/2013 (Satish Kumar Rangare v. Smt. Sarita Gajmiye (Rangare), in which, on the same date i.e. 12/6/2013, notice/summon was issued to the wife/applicant herein. It is the case of the applicant herein that the non-applicant/husband has threatened her on 6/7/2013 at Dhamtari, where she has gone for attending the Court proceeding, pursuant to the summon issued to her. The applicant/wife in the aforestated background has filed this instant petition seeking transfer of the case filed by non-applicant/husband before the Court of Principal Judge, Family Court, Dhamtari to Principal Judge, Family Court, Durg, for hearing and disposal in accordance with law.

2.3 The non-applicant/husband has filed reply, opposing the transfer petition stating inter-alia that no valid and reasonable ground in favour of applicant for presenting instant application for transfer to the Principal Judge, Family Court, Durg is made out and instant application is liable to be rejected.

Mr. Jitendra Gupta, learned counsel appearing for the applicant/wife would submit that she has firstly filed an application for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 before the Principal Judge, Family Court, Durg, and thereafter, non-applicant/husband as a counter blast has filed application for divorce u/s 13 of the Hindu Marriage Act, 1955 at Principal Judge, Family Court, Dhamtari to harass the applicant/wife. He would further submit that the application for restitution of conjugal rights and application for divorce be heard analogously in view of provisions contained in Section 21A of the Hindu Marriage Act, 1955, therefore, application for divorce pending at Principal Judge, Family Court, Dhamtari be transferred to the file of Principal Judge, Family Court, Durg for analogous hearing and disposal in accordance with law.

Replying the contention so raised, Mr. Anup Majumdar, learned counsel appearing for the non-applicant/husband would submit that non-applicant/husband is physically handicapped person and there is no sufficient ground has been raised in the petition for transfer of the divorce processing, therefore, the transfer petition deserves to be rejected.

I have heard learned counsel for the parties and considered the rival submission and have perused the memo of petition and other papers.

Section 21A of the Hindu Marriage Act, 1955 provides 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 u/s 10 or for a decree of divorce u/s 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 u/s 10 or for a decree of divorce u/s 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 subsection (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 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.

The marginal note of Section 21A of the Hindu Marriage Act, 1955, itself makes it clear that it deals with power to transfer petitions and the transfer petition and direct their joint or consolidated trial "in certain cases" and is not exhaustive.

The Supreme Court in case of Guda Vijayalakshmi Vs. Guda Ramachandra Sekhara Sastry, , has considered that in matter of transfer of petitions for consolidated hearing, Section 21A of the Hindu Marriage Act, 1955, cannot be regarded as exhaustive and held that in order to avoid conflicting decisions being recorded by two different Court; it would be expedient to have joint or consolidated trial of petition for conjugal right presented by wife and petition for judicial separation filed by husband. Para-5 of the report states as under:

5....Such a view, in our opinion, is not correct. 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 Sections of the Act and the wife''s petition for judicial separation against the husband on the ground of cruelty u/s 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 CPC 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 case of Sadhna v. Pradeep M. Ahluwalia, JT 2000 (10) SC 207 the Supreme Court while dealing with identical situation, where the petition u/s 9 of the Hindu Marriage Act, 1955 was filed earlier in point of time at Panchkula, and the later petition filed for divorce u/s 13(1) of the Hindu Marriage Act, 1955 by husband at Bandra, Mumbai, held that it would be expedient that both petitions be transferred at Panchkula, where the petition filed by wife earlier in time was pending. Para-4 of report states as under:

Without commenting upon the correctness or otherwise of the allegations made in the petition and the counter-affidavit but keeping in view the fact that the petitioner-wife had filed a petition u/s 9 of the Hindu Marriage Act earlier in point of time, which is pending before the Additional District Judge, Panchkula, we consider it expedient that both the cases, i.e. the petition u/s 9 of the Hindu Marriage Act and the petition u/s 13(1)(ia) of the Hindu Marriage Act, are tried by the same Court. We accordingly, withdraw the file of divorce petition u/s 13(1)(ia) titled Pradeep M. Ahluwalia v. Sadhna filed by the respondent-husband from the Family Court at Bandra, Mumbai and transfer it to the file of the learned Additional District Judge, Panchkula, who shall try the case in accordance with law. Both the cases shall be tried together. The learned Presiding Officer of the Family court at Bandra, Mumbai, shall send the record of the divorce petition u/s 13(1)(ia) to the Court of Additional District Judge, Panchkula without any delay. The Transferee Court shall issue notice to the parties and dispose of the petitions expeditiously.

Admittedly, in the instant case, the application for restitution of conjugal rights was filed by the applicant/wife at Principal Judge, Family Court, Durg, registered as Case No. 330-A/2013 (Smt. Sarita Rangare v. Satish Rangare). During pendency of said application and upon receipt of the notice issued by the Principal Judge, Family Court, Durg, immediately, non-applicant/husband has subsequently filed application for divorce on the ground of cruelty, which was registered as Case No. 89-A/2013 on 12/6/2013 at Principal Judge, Family Court Dhamtari, in which, she has been noticed/summoned by the Principal Judge, Family Court, Dhamtari. Thus, taking into consideration of Section 21A of the Hindu Marriage Act, 1955, two petitions i.e. one for restitution of conjugal rights at Principal Judge, Family Court, Durg filed firstly, and second petition for divorce at Principal Judge, Family Court, Dhamtari has been filed in later point of time, which was filed for divorce at Principal Judge, Family Court, Dhamtari deserves be transferred to the Principal Judge, Family Court, Durg, where earlier petition was filed, for joint and consolidated trial by the Principal Judge, Family Court, Durg in accordance with law to avoid conflicting decisions rendered by two Courts in relating to two application filed by the same parties in two different Court

Accordingly instant transfer petition is hereby allowed. The Case No. 89-A/2013 (Satish Kumar Rangare v. Smt Sarita Gajmiye (Rangare) filed for divorce u/s 13(1) of the Hindu Marriage Act, 1955 by non-applicant/husband pending before the Principal Judge, Family Court, Dhamtari is hereby withdrawn from said Court and aforestated matrimonial case is transferred to Principal Judge, Family Court Durg, for joint and consolidated trial in accordance with law. Both the cases shall be tried together at Principal Judge, Family Court Durg. It is directed that Principal Judge, Family Court would send the records of the divorce petition to the Principal Judge, Family Court, Durg without any delay. Parties shall appear before the Principal Judge, Family Court, Durg on 24th of February, 2014.

Certified copy as per Rules.