N. M. KASLIWAL, J. -
(1.)THE petitioner Smt Sawita has filed this transfer petition under s. 24 C. P. C. read with sec. 21-A of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for transferring Case No. 133/83: Chandra Prakash vs. Smt. Sawita, pending in the court of District Judge, Bharatpur, to the court at Jaipur and to consolidate the same with Case No. 130/83, pending in the court of District Judge, Jaipur City Jaipur.
(2.)BRIEF facts leading to this petition are: that Smt. Sawita, the petitioner was married to Chandra Prakash, the non-petitioner, on 27. 11. 82 at Jaipur according to Hindu rites. The case of the petitioner is that after their marriage, the parties lived together at Bhusawar upto 21. 8. 83. Before the marriage, the petitioner's father had given Rs. 21000/- and other valuable articles including jewellery to the non-petitioner. The non petitioner and his father wanted to have a Scooter from the petitioner's father. This demand could not be met. Thus, after few months of the marriage, the non-petitioner and his father started mal-treating the petitioner and on her refusal to bring scooter, her life was made miserable and she became sick. It has been further alleged that on 21. 8. 83, the petitioner's father-in-law and her husband left her at her maternal uncle's house at Jaipur without speaking anything to the maternal-uncle. The non-petitioner and his father started making false and frivolous charges against the petitioner and her father. A notice was received by the petitioner and her father from the Advocate of the non-petitioner. In this notice, it was alleged that the petitioner was mentally sick. A reply was sent to the said notice by the Advocate of the petitioner, in which it was clearly mentioned that an application under s. 9 of the Act for restitution of conjugal rights was filed by the petitioner. The petitioner had submitted an application for restitution of conjugal rights under s. 9 of the Act on 11. 10. 83 in the court of the District Judge, Jaipur. The non-petitioner, having come to know that the petitioner has already filed an application under s. 9 of the Act and in order to harass the petitioner and her father, filed another petition under s. 12 of the Act on 28,10. 83 in the court of District Judge, Bharatpur for declaring the marriage between the parties, an null and void.
The petitioner in these circumstances, has submitted this application for transferring the petition filed under s. 12 of the Act by the non-petitioner in the court of District Judge, Bharatpur, to the court of District Judge, Jaipur and to be tried along with the petition filed by the petitioner under s. 9 of the Act.
In this regard it has been submitted by the petitioner that the petition filed by the petitioner in the court of District Judge, Jaipur City, Jaipur was filed on 11. 10. 83. while the petition filed by the non-petitioner in the court of Districts Judge Bharatpur was filed on 28. 10. 83 and in accordance with the intention of the framers of s. 21-A of the Act, it was clear that a petition filed subsequently, should be transferred to the court, in which the earlier petition is pending, It has been further submitted that the question to be decided in both the petitions is common and in case these two petitions shall be allowed to be tried by two different courts, there is a possibility of conflicting judgements. It has also been submitted that in the interest of justice and to save the valuable time of the courts, both the petitions should be consolidated and tried by one and the same court. It has been submitted that the petitioner is a lady and in case she would be compelled to attend the court at Bharatpur, she will have to take one of her relatives also to escort her upto the court of Bharatpur and this would cause great inconvenience and expenditure to the petitioner. It has further been alleged that the petitioner had a fear of life in going to Bharatpur as the non-petitioner and his family members wanted to get rid of the petitioner by hook or crook. The non-petitioner is at presnt posted at Hindon and it would not make any difference for him whether he attend the court at Bharatpur or Jaipur.
The petition was opposed by the non-petitioner. It was submitted by the non-petitioner in the reply that the facts mentioned by the petitioner in the transfer petition were wholly irrelevant for deciding this transfer petition. It was also submitted that s. 21-A of the Act is not at all applicable in the present case. The said section is applicable only for the cases of judicial separation under s. 10 and for a decree of divorce under s. 13 of the Act. The present petition has been filed under sec. 9 of the Act for restitution of conjugal rights and as such sec. 21-A cannot be applied in the facts and circumstance of present case. It was also urged that s. 24, C. P. C. is also not applicable in the present case, as special provision under s. 21-A has been specifically provided in the Hindu Marriage Act and if the case does not fall within the purview of s. 21-A. then, the general power of transfer contained in s. 24, C. P. C. cannot be applied. It has also been alleged that the allegations made by the petitioner were wholly incorrect and concocted and have been levelled only with an ulterior motive to get this transfer petition allowed. It has also been stated that the allegations made by the petitioner that petition filed by the non-petitioner in the court of District Judge, Bharatpur, was filed after full knowledge of the petitioner application in the court of District Judge, Jaipur, is also wholly unfounded and false.
Sec. 21-A, which provides for power to transfer petition in certain cases, mads as under:- "21-A Power to transfer petition 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 marriage praying 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 dfferent State, 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 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 or proceeding from the district court in which the later petition has been presented to the district court in which the earliar 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. " There can be no manner of doubt that the above provision applies to a contingency where a petition under this Act has been presented to the District Court by a party to marriage praying for a decree for judicial separation under s. 10 or for a decree of divorce under s. 13 and another petition presented thereafter by other party to the marriage praying for similar relief, whether in the same district court or any dfferent district court, in the same State or in a dfferent State Thus the provisions contained in s. 21-A envisage the transfer of petitions, which have been filed under s. 10 or s. 13 of the Act. Thus, there can be no manner of dispute in holding that the transfer petition filed in the present case does not come within purview of s. 21-A of the Act. However, the question, which still remains to be decided is whether this Court is empowered or not to transfer the petition under s. 24, C. P. C.
(3.)I see no force in the contention of Mr. Gupta, learned counsel for the non-petitioner in this regard that when special a provision like s. 21-A, has been provided by the Legislature in the Hindu Marriage Act, then, no general power of transfer contained in s 24, C. P. C. can be exercised by the High Court, even though it may be a fit case for transfer.
Sec. 21-A no doubt provides for transfer of petitions in certain cases only, namely, those, which are filed for a decree for judicial separation under s. 10 or for a decree of divorce under s. 13 and provides for procedure as to how such application would be dealt with when they are filed in the same District Court or a different District Court. If such situation arises, as is contained in S. 21-A. then certainly the matter would be decided according to the provisions contained in s. 21-A. It does not however, restrict in any manner, the general power of the High Court contained in s. 24, C. P. C.
The provisions of s. 21-A only lay down positive provisions, which have to be applied in transfer petitions in certain cases; but the same cannot be interpreted in a manner so as to bar specific-ally or even impliedly the general power of transfer contained in s. 24, C. P. C. Sec. 21 of the Act lays down a clear provision that subject to the other provisions contained in this Act and to such Rules as the High Court may made in this behalf, all the proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure, 1908. This clearly goes to show that all proceedings under the Hindu Marriage Act have to be regulated, as far as may be, by the Code of Civil Procedure. 1908 and sec. 24, C. P. C. would certainly apply in considering cases of tranferr-ing any petitions under the Act except those, petitions, which may come within the purview of s. 21-A of the Act. Thus. I am clearly of the view that the petition in the present case filed by the petitioner, can be dealt with by this Court under s. 24, C. P. C, as the same does not come within the purview of Sec. 21-A of the Act.