Abhishek Konojia vs Smt. Bhoomika Kanojia
2022 Latest Caselaw 7829 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                       BEFORE
      HON'BLE SHRI JUSTICE VISHAL DHAGAT
            MISC CIVIL CASE No.1282 of 2021
Between:-


SMT. BHUMIKA KANOJIYA W/O SHRI ABHISHEK
KANOJIYA , AGED ABOUT 28 YEARS, OCCUPATION:
HOUSE WIFE R/O AT PRESENT 1844 GOVIND
BHAWAN SOUTH CIVIL LINES JABALPUR (MADHYA
PRADESH)
                                     .....APPLICANT
(BY MR. KAPIL SINGH, ADVOCATE)


                       AND
ABHISHEK KANOJIYA S/O ANGADNATH KANOJIYA ,
AGED ABOUT 34 YEARS, OCCUPATION: SERVICE
R/O VIPUL IN H.NO. 37 CENTURY ENCLAVE BHOPAL
(MADHYA PRADESH)
                                  .....RESPONDENTS
(BY MR. R.K.SANGHI, ADVOCATE )


            MISC. CIVIL CASE No. 1023 of 2021


Between:-


SMT. BHUMIKA KANOJIYA W/O SHRI ABHISHEK
KANOJIYA , AGED ABOUT 28 YEARS, OCCUPATION:
HOUSE WIFE R/O AT PRESENT 1844 GOVIND
BHAWAN SOUTH CIVIL LINES JABALPUR (MADHYA
PRADESH)
                                     .....APPLICANT


(BY MR. R.K.SANGHI, ADVOCATE)
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                              AND


     ABHISHEK KANOJIYA S/O ANGADNATH KANOJIYA ,
     AGED ABOUT 34 YEARS, OCCUPATION: SERVICE
     R/O VIPUL IN H.NO. 37 CENTURY ENCLAVE BHOPAL
     (MADHYA PRADESH)
                                             .....RESPONDENTS


     (BY KAPIL SINGH, ADVOCATE)


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     Reserved on              : 02.05.2022
     Delivered on             : 15.06.2022
***********************************************************
     These applications have come up for hearing on this day,. the
court passed the following:
                              ORDER

Applicant in MCC No.1282/2021 has filed an application under Section 24 of CPC read with Section 20-A of Hindu Marriage Act, 1955 for transfer of case bearing No.RCS HM264/2021 from Bhopal to Jabalpur.

2. Counsel appearing for applicant submitted that she was married to non-applicant on 28.04.2018. After marriage, she gave birth to boy namely Shivansh Kanojiya on 04.03.2019. The applicant and non-applicant are having strained relationship and at present, applicant is residing in Govind Bhawan South Civil Lines Jabalpur (MP). Applicant had filed a civil suit for Restitution of Conjugal

Rights, which was registered as Case No.RCS HM569/2021 pending before First Additional Principal Judge Jabalpur. In said case, non- applicant is appearing through his counsel. Applicant is not getting any maintenance amount and her application for maintenance under Section 125 of Cr.P.C is pending before 2nd Additional Principal Judge in Jabalpur. During pendency of aforesaid applications, non- applicant has filed an application under Section 13 of Hindu Marriage Act for divorce in family Court Bhopal. Applicant-wife is seeking transfer of case on ground that traveling time between two stations is more than 6-8 hours. Applicant is a lady and it is difficult for her with minor child to travel to Bhopal. It is submitted that at the time of filing of an application under Section 13 of Act, applicant was residing at Bhopal. On date of hearing, non-applicant along with family members restrained the applicant so that she may not go to the Court. She was also assaulted and had received injuries. She had filed a complaint before Police Station-Misrod District-Bhopal. It is submitted that non-applicant is already attending case at Jabalpur. Doctor had advised the applicant not to travel, as she is having travel sickness. On aforesaid grounds, applicant-wife prays for transfer of case.

3. In MCC No.1023/2021, applicant-husband namely Abhishek Kanojiya has filed an application under Section 24 of CPC for transfer of Civil Suit filed under Section 9 of Hindu Marriage Act pending at Jabalpur to Bhopal. It is submitted that as per Section 20- A of Hindu Marriage Act, suits filed by the parties under Hindu Marriage Act at different districts are to be heard at the same place. Case is to be transferred at District, where case is filed earlier in time. It is submitted that applicant-husband has filed suit under Section 13 of the Act, which is earlier in point of time, therefore, suit

filed by non-applicant-wife Smt. Bhumika Kanojiya may be transferred to Bhopal.

4. Heard learned counsel for parties.

5. For transferring of case, Section 21-A of Hindu Marriage Act is reproduced as under :

21-A. 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 of 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.

6. the petitions 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 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 off together by the District Court in which the earlier petition was filed presented.

7. As per Section 21-A of Hindu Marriage Act, in similar circumstances, Apex Court in case of Shruti Kaushal Bisht Vs. Kaushal R. Bisht reported in (2020) 10 SCC 725 has held as under :

"10. Sub-Section (1) of Section 21-A, deals with a situation where one party to a marriage has filed a petition either for judicial separation under Section 10 or for a decree of divorce under Section 13, before a District Court having jurisdiction and thereafter the other party to the marriage, files a petition either under Section 10 or under Section 13, before the same District Court or in a different District Court in the same State or in a different State. Such types of cases, covered by Subsection (1), are required to be dealt with, in the manner specified in Sub section (2). Sub section (2) of Section 21A, has no independent existence dehors Subsection (1). A combined reading of Sub sections (1) and (2) would show that the procedure prescribed by Sub section (2), applies only to situations covered by Sub section (1).

11. In the case on hand, what was filed by the husband, first in point of time, was a petition for divorce and hence his case may fit into clause (a) of Sub section (1) of

section 21A. But unfortunately for him, what was filed by the wife later in point of time was only a petition under Section 9 and not a petition either under Section 10 or under Section 13 of the Hindu Marriage Act. Thus, the wife'™s petition, though subsequent in point of time, does not fall under 6 Clause (b) of Subsection (1) of Section 21-A. As a consequence, Sub section (1) of Section 21-A has no application to the case on hand, as the preconditions stipulated therein are not satisfied."

8. This case is similar to the case, which has been decided by Apex Court. Section 21-A of the Act is not attracted in the case, therefore, MCC No.1023/2021 filed by applicant-husband namely Abhishek Kanojiya is dismissed.

9. Wife has filed an application for transfer of case on grounds of personal inconvenience i.e. distance between two places is about 350km. Applicant-wife is having a young son with whom, she cannot travel. Applicant-wife was also subjected to violence at the time of appearance before Family Court Bhopal. Applicant-wife is suffering from traveling sickness and doctor had advised her not to travel. Applicant-wife had made out a case for transfer. In interest of justice, it is expedient that petition under Section 13 and Section 9 of the Act may be heard at same place so that contradictory judgment and decree may not be passed by two Courts creating anomalous situation.

10. In these circumstances, application filed by applicant-wife Bhumika Kanojiya for transfer of case is allowed. Civil Suit of husband bearing No.RCS HM264/2021 be transferred from Family

Court Bhopal to Family Court Jabalpur, where case under Section 9 of Hindu Marriage Act registered as RCS HM569/2021 is pending.

11. With aforesaid direction, applications filed by parties are disposed off.

(VISHAL DHAGAT) JUDGE nd

NEETI TIWARI 2022.06.16 16:34:38 +05'30'