Mukesh Prajapat vs Sapna Prajapat
2023 Latest Caselaw 7823 Raj

                                      (1 of 9)



        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR



              (1) S.B. Civil Transfer Appl. No.164/2023

   Sapna Prajapat W/o Mukesh Prajapat D/o Lekhraj Prajapat,
   resident of at present Plot No.06, Hanuman Gali, Suraj Poll,
   District Pali
                                                                    ----Petitioner
                                     Versus
   Mukesh Prajapat S/o Sh. Ganesh Ram Prajapat, resident of
   Inside Jalori Gate, Balbari School Street, Near Bhati Dairy,
   Jodhpur, District Jodhpur
                                                                  ----Respondent
                                Connected with


              (2) S.B. Civil Transfer Appl. No.257/2023

    Mukesh Prajapat S/o Sh. Ganesh Ram Prajapat, resident of
    Inside Jalori Gate, Balbari School Ki Gali, Near Bhati Dairy,
    Jodhpur, District Jodhpur
                                                                    ----Petitioner
                                     Versus
    Sapna Prajapat W/o Mukesh Prajapat D/o Lekhraj Prajapat,
    resident of Plot No.06, Hanuman Gali, Suraj Poll, District Pali
                                                                  ----Respondent


   For Wife                 :     Mr. Dinesh Vishnoi for Mr. JVS Deora
   For Husband              :     Mr. Ramesh Kumar Prajapat



              HON'BLE MR. JUSTICE MADAN GOPAL VYAS

                                  JUDGMENT

REPORTABLE

DATE OF ORDER 04/10/2023

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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

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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. 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 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

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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. 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

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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. (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

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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. 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;

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(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

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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. 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

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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.

(MADAN GOPAL VYAS),J CPG/-

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