IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 Tr.P(C).No. 30 of 2009 TO TRANSFER OP.1792/2008 of FAMILY COURT,ERNAKULAM TO THE FAMILY COURT, KOZHIKODE. PETITIONER: -------------------- SASIKUMAR, S/O. MADHAVAN NAIR, SANTHINI, CHERUKULATHOOR.P.O, PERUVAYAL, KOZHIKODE. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENT: --------------- BINDU.S, AGED 36 YEARS, W/O. SASIKUMAR, SHAYAM KRISHNA, BLOCK PADI, KAITHARAM.P.O, NORTH PARAVOOR, ERNAKULAM DISTRICT. ADV. SRI.P.V.DILEEP THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, ALONG WITH TPC NO. 44 OF 2009, THE COURT ON 27/3/2009 PASSED THE FOLLOWING: I.A.NO.137/2009 IN TR.P.C.NO.30/2009 DISMISSED 27/3/2009 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ TR.P.(C) NOS.30 & 44 OF 2009 ------------------------------------------------------ Dated this the 27th March, 2009 O R D E R The question involved in these Transfer Petitions is whether Section 21A of the Hindu Marriage Act, 1955 would apply to a situation where the husband has filed a petition for restitution of conjugal rights in a Family Court and thereafter the wife has filed a petition for divorce in another Family Court. 2. The wife is the petitioner in Tr.P.(C) No.44 of 2009 while the husband is the petitioner in Tr.P.(C) No.30 of 2009. The prayer made by the wife is to transfer the petition for restitution of conjugal rights filed by the husband, before the Family Court, Kozhikode to the Family Court, Ernakulam, where the petition for divorce filed by the wife is pending. The prayer made by the husband in the Transfer Petition filed by him is to transfer the petition for divorce filed by the wife before the Family Court, Ernakulam to the Family Court, Kozhikode, where the petition filed by the husband for restitution of conjugal rights is pending. It is not in dispute that the petition filed by the husband was earlier in point of time. 3. O.P.No.1792 of 2008 was filed by the wife before the Family TR.P.(C) NOS.30 & 44 OF 2009 :: 2 :: Court, Ernakulam, seeking divorce under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act. O.P.No.1020 of 2008 was filed by the husband against the wife before the Family Court, Kozhikode under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Both these petitions are pending. 4. Section 21A of the Hindu Marriage Act reads as follows: “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, 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. TR.P.(C) NOS.30 & 44 OF 2009 :: 3 :: (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, 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.” After the commencement of the Family Courts Act, instead of District Courts, the Family Courts have jurisdiction to deal with the matters mentioned in Section 21A of the Hindu Marriage Act. 5. The necessary ingredients to apply Section 21A are: (1) A party to the marriage has filed a petition for a decree for judicial separation under Section 10 or for a decree for divorce under Section 13 of the Act. (2) The other party to the marriage has thereafter filed another petition under Section 10 or under Section 13 either in the same District Court (Family Court) or in a different District Court (Family Court). If the petition is not under Section 10 or Section 13 of the Hindu Marriage Act, Section 21A would have no application. The purpose of Section 21A is clear from sub-section (2) thereof. In a case where sub-section (1) applies, both the petitions shall be tried and heard together by the same Court. If the petitions are presented before the same District Court (Family Court), they shall be heard by that District Court (Family Court) and if the petitions are presented before different District Courts (Family TR.P.(C) NOS.30 & 44 OF 2009 :: 4 :: Courts), the later one shall be transferred to the District Court in which the earlier petition was presented. This provision is intended to avoid conflicting decrees being made by different Courts. Section 21-A as such would not apply where one of the parties files a divorce petition before one Family Court and the other party files a petition for maintenance or a petition for restitution of conjugal rights or a petition for return of ornaments or any other relief in a different Family Court. 6. In Sankaran Nair v. Vijayalekshmi (2007 (3) KLT 280), a Division Bench of this Court considered the scope and ambit of Section 21A and held as follows: “The pre-condition for exercise of power of transfer under S.21-A of the Act is the pendency of a petition under S.10 of the Act for judicial separation or a petition for decree of divorce under S.13 of the Act before one District Court (presently Family Court), and a petition either under S.10 or under S.13 of the Act on any ground either before the same District Court or a District Court in the same State or a different State. Only in such situations, an order can be passed transferring the petitions for joint trial, if pending before the same District Court or transferring the case to the Court where the case earlier in point of time was filed for joint trial. The mere pendency of various matrimonial disputes between the parties in different Courts or in the same Court will not be sufficient to have either joint trial or transfer to the same Court. Only in a situation where a petition under S.10 for judicial separation or under S.13 for a decree of divorce filed by one party in one District Court and the petition/s for the same relief filed by the other party to the marriage either in the same Court or in a different District Court (Family Court) are pending, the power under S.21A(2) (b) can be exercised either for joint trial or for transfer and joint trial.” TR.P.(C) NOS.30 & 44 OF 2009 :: 5 :: 7. In M.Manjulatha and others v. Dr.M.L.Narasimham (1985(1) Kar.L.J.380= ILR 1985 Kar.1413) it was held thus: “ The headnote of Section 21-A specifies power to transfer petitions in certain circumstances. Section 21-A deals with petitions wherein a decree for judicial separation under Section 10 or divorce under Section 13 are filed and another petition has been presented by the other party praying for a judicial separation or for a divorce in another Court on any ground whatsoever, the petition shall be dealt with in accordance with what is provided in sub-section (2). Therefore, the limited scope of Section 21-A is applicable to only cases of proceedings instituted for judicial separation and divorce and not otherwise. The guidelines given in Section 21-A cannot be applied to the exercise of power under Section 23, CPC because Section 21-A of Hindu Marriage Act is applicable only in certain cases and is not exhaustive.” The same view was taken in Smt.R.S.Shyamala v. Dr.G.Rajasekar (1995(3) Kar.L.J.170), wherein it was held thus: “Section 21-A deals with only petitions filed under Section 10 or Section 13 of the Hindu Marriage Act. The petition filed by the wife is under Section 9 of the Act for restitution of conjugal rights. Therefore Section 21-A will have no application to the facts of the case.” 8. Section 21 of the Hindu Marriage Act provides that subject to the other provisions contained in the Act and to such rules as the High Court may make in that behalf, all the proceedings under the Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. TR.P.(C) NOS.30 & 44 OF 2009 :: 6 :: Section 21 of the Hindu Marriage Act does not as such provide for any discretion to be exercised by the Court in the matter of transfer. However, by the introduction of Section 21A, specific provision has been made to deal with a situation where one party has filed a petition before one Court and the other party has filed a petition for a similar relief in the other Court. However, the application of Section 21A is restricted to a petition under Section 10 or a petition under Section 13 of the Hindu Marriage Act. But Section 21A is not exhaustive in the matter of transfer of cases. Section 21A does not cover the several situations warranting transfer of one case to the other Court either for simultaneous disposal or for joint trial. These situations are covered by Section 24 of the Code of Civil Procedure. The special provision, namely, Section 21A of the Hindu Marriage Act, would not curtail the general power of the Court contained in Section 24 of the Code of Civil Procedure. Therefore, in cases where a transfer is sought for and it is not covered by Section 21A, still the Court can exercise the power for transfer under Section 24 of the Code of Civil Procedure. 9. In Guda Vijalakshmi v. Guda Ramachandra Sekhara Sastry (AIR 1981 SC 1143), the Supreme Court considered the scope and ambit of Section 21 and 21A of the Hindu Marriage Act and the provisions under the Code of Civil Procedure and held thus: TR.P.(C) NOS.30 & 44 OF 2009 :: 7 :: “3. In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25 C.P.C is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. Section 21 of the Hindu Marriage Act merely provides: “Subject to the other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908”. In terms Section 21 does not make any distinction between procedural and substantive provisions of C.P.C and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase “as far as may be” means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into S.21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law. (See: Canadian and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd. (1947) AC 46, at p.56 (P.C.). 4. So far as Section 21A of the Hindu Marriage Act is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial “in certain cases” and is not exhaustive. ......... It is, therefore, difficult to accept the contention that Section 21-A of the Hindu Marriage Act excludes the power of transfer conferred upon this Court by the present Section 25 of C.P.C in relation to proceedings under that Act.” TR.P.(C) NOS.30 & 44 OF 2009 :: 8 :: 10. For the aforesaid reasons, I reject the contention raised by the counsel for the petitioner in Tr.P.C.No.30 of 2009 (the husband) that Section 21-A of the Hindu Marriage Act is applicable to the case and that his request for transfer should be allowed on that ground. 11. Now the question to be considered is, applying Section 24 of the Code of Civil Procedure, which of the Transfer Petitions is liable to be allowed. The marriage between the parties was solemnized in the year 1992. Two children were born in the wedlock. It is stated that the children are of the age of 15 years and 12 years. The children are residing with their mother. The wife belongs to North Parur and the husband is a native of Kozhikode. Marriage was solemnized at Kozhikode. It is stated that the wife has recently got a job in “Vodafone” at Ernakulam. The husband is employed in Middle East. The distance from North Parur to Calicut is more than 150 KMs., while the distance to Ernakulam is about 40 KMs. The wife says that she has to maintain her aged parents. The children are school going children. Taking into account the facts and circumstances of the case, I am of the view that the request for transfer of the case to Ernakulam, made by the wife in Tr.P.C.No.44 of 2009 is just and reasonable. Since the husband is working in Middle East, it does not matter much for him if the cases are tried by the Family Court, Ernakulam. TR.P.(C) NOS.30 & 44 OF 2009 :: 9 :: For the aforesaid reasons, I allow Tr.P.C.No.44 of 2009 filed by the wife and dismiss Tr.P.C.No.30 of 2009 filed by the husband. O.P.No.1020 of 2008 pending before the Family Court, Kozhikode shall stand transferred to the Family Court, Ernakulam, where O.P.No.1792 of 2008 is pending. Since the husband is working abroad, the Family Court shall consider the request of the parties to exempt them from personal appearance to the extent possible. The Registry shall send copy of the judgment to the Family Court, Kozhikode and the Family Court, Ernakulam. (K.T.SANKARAN) Judge ahz/