Delhi High Court
Vikas Harjai vs Dr. Chetna Anand on 19 March, 2015
$-38 & 39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th March, 2015
+ TR.P. (C.) 57/2014
DR.CHETNA HARJAI
..... Petitioner
Through: Mr.Manish Garg, Advocate
with Mr. Hitesh Kumar Bagri,
Advocate
versus
VIKAS HARJAI ..... Respondent
Through: Mr. Rohit Bhardwaj, Advocate
with Mr. Narendra Kumar
Goyal, Advocate
+ TR.P.(C.) 73/2014
VIKAS HARJAI
..... Petitioner
Through: Mr. Rohit Bhardwaj, Advocate
with Mr. Narendra Kumar
Goyal, Advocate
versus
DR. CHETNA ANAND ..... Respondent
Through: Mr.Manish Garg, Advocate
with Mr. Hitesh Kumar Bagri,
Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
TR.P.(C.).57/2014 & 73/2014 Page 1 of 7
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. Two divorce petitions, one being HMA Petition no.112/2009
and the other being HMA Petition no.534/2013 are pending
between the parties. The husband Vikas Harjai preferred the
first divorce petition on the ground of cruelty sometime in 2009.
Issues have been framed in the said petition and the matter is
listed for evidence. On the other hand, HMA Petition
no.534/2013 has been preferred by the wife Dr. Chetna Harjai,
for divorce only and also on the ground of cruelty.
2. For the sake of convenience, Vikas Harjai shall be referred to as
the husband while Dr. Chetna Harjai shall be referred to as the
wife.
3. It is urged by the learned counsel for the wife that Chetna Harjai
is employed as a scientist in the Department of Environment,
Government of NCT of Delhi, Delhi Secretariat, near ITO. She
is a resident of Shalimar Bagh. She has to take care of her aged
parents and minor child aged eight years. It is therefore,
inconvenient for her to attend the Court proceedings at Dwarka
Courts. It is hence, prayed that HMA Petition no.112/2009
pending before the Principal Judge, Family Court, Dwarka may
be transferred and assigned to the Court of Principal Judge,
Family Court, Rohini, where the second petition preferred by
the wife is pending. It is stated that a case under Protection of
Women from Domestic Violence Act, 2005 is also pending in
the Court of Metropolitan Magistrate, Rohini. It is urged by the
learned counsel for the wife that it will be inconvenient for the
child to reach Dwarka Court as he is studying in Bal Bharti
School, which is also close to his residence in Shalimar Bagh.
4. The petition for transfer preferred by the wife is opposed by the
husband. It is stated by the learned counsel for the husband that
although the petition for divorce desired to be transferred now
has been pending for about six years, the wife did not prefer to
move an application for transfer of the petition to the Court at
Rohini earlier, particularly when the child was even more small
at that time. It is urged by the learned counsel for the husband
that the presence of child is not required by the Court of
Principal Judge, Family Court at Dwarka at all. Visitation
rights as granted can be availed by the husband at any place
close to the residence of the wife/child. The learned counsel for
the husband also places reliance on Section 21(a) of the Hindu
Marriage Act, 1955 (the Act) which lays down that if two
separate petitions under Section 10 or Section 13 are filed by
husband/wife, both the petitions should be tried together. If the
petitions having been filed before two different Courts, then the
petition filed later in time has to be transferred to the Court
where the first petition is pending. The learned counsel for the
husband urges that the provisions of Section 4 of the Act clearly
state that the Act has an overriding effect over other laws and its
provisions are mandatory.
5. I am unable to subscribe to the view that the provisions of
Section 21 of the Act are mandatory. Section 21(a) deals with a
normal situation when two different petitions are filed by the
husband and the wife under Section 10 or Section 13 of the Act.
Normally, the petition filed later in point of time if
presented/pending before a different Court has to be transferred
to the first Court but if either of the parties is able to make out a
case that the first petition must be transferred to the Court where
the second petition has been instituted, that will also be
permissible.
6. The question for consideration however, is whether the rule laid
down in Section 21(a) of the Act should be followed or there is
any exceptional circumstance so as not to follow the provisions
of Section 21(a) of the Act.
7. As stated earlier, the contention raised on behalf of the wife is
that it will be very inconvenient for the wife to attend to the
proceedings in the Court of Principal Judge, Family Court,
Dwarka because of distance. Another contention is that it will
be difficult and inconvenient for the child to attend the Court at
Dwarka. The contentions do not hold much water. It is the
admitted case of wife that she is working as a scientist in the
Department of Environment, Government of NCT of Delhi
which is located at Delhi Secretariat, Vikas Marg, close to ITO.
Thus, it is evident that the wife has to travel daily a distance of
15km to 20km one side for her employment, whereas hearing in
the Family Court will hardly be once or twice a month. As far
as inconvenience and difficulty of the child is concerned,
presence of the child is not needed before the Family Court,
Dwarka at all. As stated earlier and agreed by the learned
counsel for the husband, visitation rights can be availed by the
husband at some neutral place which may not be very far from
the residence of the child at Shalimar Bagh. Thus, I do not find
any ground to deviate from the provisions of Section 21(a) of
the Act.
8. Consequently, TR.P.(C.) 57/2014 titled Dr. Chetna Harjai v.
Vikas Harjai is dismissed, whereas TR.P.(C.) 73/2014 titled
Vikas Harjai v. Dr. Chetna Anand is allowed.
9. HMA Petition no.534/2013 pending in the Court of Additional
Principal Judge, Family Court, Rohini is transferred to the Court
of Principal Judge, Family Court, Dwarka where HMA. Petition
no.112/2009 is pending to be tried by him/her.
10. It is made clear that both the petitions shall be tried together
either by the Principal Judge or the Additional Principal Judge
together.
11. Both the petitions are disposed of accordingly.
12. Pending applications also stand disposed of.
13. A copy of the order be transmitted to the Courts concerned.
14. Dasti also.
(G.P. MITTAL)
JUDGE
MARCH 19, 2015
pst
