1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD MISC. CIVIL APPLICATION NO.2 OF 2009 Tejenderkaur w/o Kamaljeetsingh Dhillon, Age 25 years, Occ. Household, R/o Gurudwara Gat No.3, Badpura, Nanded. ... PETITIONER VERSUS Kamaljeetsingh Inderjeetsingh Dhillon, Age 35 years, Occ. Police Sub Inspector, R/o Flat No.20, Humlog CHS Sector, 14, Near Gamdevi Temple, Vashi, New Bombay ... RESPONDENT ..... Shri Vivek Bhavthankar, Advocate for the petitioner Shri S.B. Patil, Advocate for the respondent ..... Coram : Shrihari P. Davare, J. Dated : 3rd July, 2009. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and by consent of learned respective counsel for the parties, petition is taken up for final hearing. 2 2. By the present petition, the petitioner/ wife seeks the transfer of H.M.P.No.539/2008 filed by the respondent/husband before Civil Judge, Senior Division, Thane to the Court of Civil Judge, Senior Division, Nanded, wherein her petition bearing H.M.P.No.2/2009 for restitution of conjugal rights is pending, under Section 24 of the Code of Civil Procedure. 3. The petitioner contends that the marriage between herself and the respondent was solemnized on 3.12.2006 at Nanded and the petitioner is resident of Nanded whereas the respondent is working in Police Department and residing at Thane. After marriage, the petitioner went with the respondent for cohabitation purpose and both of them resided and cohabited together at Thane. There are allegations of ill-treatment and due to incompatibility between the petitioner and respondent, the petitioner returned back to her parents' house at Nanded and she is residing along with her parents at Nanded presently. 4. It is submitted that the respondent filed H,M.P. No.539/2008 against the petitioner herein for divorce before Civil Judge, Senior Division at Thane on 19.9.2008. As regards the mental and physical torture, the petitioner herein filed complaint bearing No.297/2008, on 10.11.2008, under the Protection of Women from Domestic Violence Act, 2005, which is pending before Judicial Magistrate, First Class, Nanded. Moreover, the petitioner also contends that she filed H.M.P. No.2/2009 against the respondent before Civil Judge, Senior Division, Nanded for restitution of 3 conjugal rights under Section 9 of Hindu Marriage Act on 31.12.2008 and same is pending before the said Court. 5. On this background the petitioner has preferred the present petition under Section 24 of the Code of Civil Procedure, contending that she has no independent source of income and she is residing at her father's house for the shelter at his mercy, who is working as Peon in a Gurudwara. Moreover, she also contends that she has got apprehension to attend the Court at Thane where the Divorce Petition has been filed by the respondent since she apprehends threats and manhandling at the hands of respondent as he is serving in Police Department. She further submits that, it is inconvenient for her to travel all the way from Nanded to Thane, which is about 600 Kms. and she alone cannot travel the said distance, being a female, to attend the Divorce Petition filed by the respondent/ husband at Thane Court. She also submits that, no prejudice would be caused to the respondent/ husband if the Divorce Petition filed by the respondent at Thane Court is transferred to the Court at Nanded and clubbed together with the petition filed by the petitioner herein for restitution of conjugal rights for hearing purpose. 6. Learned counsel for the respondent countered the said arguments and submitted that the petition filed by the respondent for divorce pending before Civil Judge, Senior Judge, Senior Division, Thane is earlier in point of time and as per Section 21-A(2)(b) of Hindu Marriage 4 Act, the petition filed by the petitioner herein before Civil Judge, Senior Division, Nanded for restitution of conjugal rights, which is later in point of time, is required to be transferred to the Court of Civil Judge, Senior Division, Thane and, therefore, it is submitted that the present petition for transfer is required to be dismissed. 7. Moreover, the respondent also submits that he is ready and willing to bear the travelling expenditure incurred by the petitioner herein to attend the dates of the Court proceedings for divorce, filed by the respondent before Civil Judge, Senior Division, Thane and, therefore, submitted that there is no impediment for the petitioner to attend the Court proceedings at Thane Court filed by the respondent herein. 8. Besides that, the learned counsel for the petitioner raised the administrative objection that this Court has no superintendence over the Civil Judge, Senior Division, Thane and proceedings filed before the said Court cannot be transferred to Nanded by this Court as contended by the petitioner in the present petition. 9. Heard learned respective counsel for the parties. At the outset, as regards the basic administrative objection raised by learned counsel for respondent under Chapter I Rule 5, which reads as follows: 5 “5. Applications for transfer of proceedings in lower Courts -- All applications for transfer of suits, appeals, criminal cases or other proceedings pending for trial or disposal in any Civil Court or Criminal Court subordinate to the High Court or over which the High Court has the power of superintendence, to another Court subordinate to or under the superintendence of the High Court, or to the High Court may be disposed of by a single Judge.” read with Chapter XXXI Rule 2, which reads as follows : “2. All appeals, applications, references and petitions including petitions for exercise of powers under Articles 226 and 227 of the Constitution arising in the Judicial Districts of Ahmednagar, Aurangabad, Beed, Jalgaon, Jalna, Nanded, Osmanabad, Parbhani and Latur which lie to the High Court at Bombay shall be presented to the Additional registrar at Aurangabad and shall be disposed of by the Judges sitting at Aurangabad: Provided that the Chief Justice may, in his discretion, order that any case or class of cases arising in any such District shall be heard at Bombay; Provided further that the Chief Justice may, in his discretion, order that any case presented at Bombay be heard at Aurangabad. A bare perusal of Chapter I Rule 5 clarifies that the Single Judge of High Court may dispose of all the applications for transfer of the Civil and 6 Criminal matters from one Court to another subordinate to it and, therefore, the said Chapter I Rule 5 empowers the High Court for transfer of the proceedings under its superintendence and, therefore, there is no embargo of the said Rule 5 of Chapter I to entertain the present application by this Court. 10. As regards objection raised by the learned counsel for respondent in respect of Rule 2 of Chapter XXXI, admittedly this Chapter i.e. Chapter XXXI deals with the presentation of proceedings at the office of the High Court at Nagpur, Aurangabad and Panaji (Goa) and more particularly Rule 2 of Chapter XXXI pertains to the proceedings arising out of various Districts to be presented before Additional Registrar, at Aurangabad and since the petitioner herein resides at Nanded and since the petition filed by her for restitution of conjugal rights under No.2/2009 as well as Criminal complaint filed by her bearing No.297/2008 are pending before the Courts at Nanded, there is no impediment in entertaining the present petition for transfer by this Court. Besides, the said provision of Rule 2 of Chapter XXXI applies to all appeals, applications, references and petitions including petitions for exercise of powers under Articles 226 and 227 of the Constitution of India arising in the various judicial districts which comprises Nanded also and, therefore, the present petition can be very well presented before the Registrar of this Court and shall be disposed of by this Court and hence, there is no substance in the said objection raised by the learned counsel for respondent. 7 11. As regards the another contention raised by learned counsel for the respondent that the respondent’s petition i.e. Petition No.539/2008 filed by him for divorce before Civil Judge, Senior Division, Thane is earlier in point of time and the petitioner’s petition i.e. H.M.P. No.2/2009 and Criminal Complaint filed by her bearing No.297/2008 are later in point of time, the provisions of Section 21-A(2)(b) of Hindu Marriage Act will come into picture and, therefore, H.M.P. No.2/2009 filed by the petitioner for restitution of conjugal rights and her Criminal Complaint, which are later in point of time, are required to be transferred to Civil Judge, Senior Division, Thane, the learned counsel for the petitioner relied upon the observations made by the Hon’ble Supreme Court in the case reported at AIR (SC) (1981) 1143 Guda Vijayalakshmi Vs. Guda Ramchandra Sekhara Asstry), in paragraph Nos.4 and 9 thereof, which read as under : “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 and consolidated trial “in certain cases” and is not exhaustive. Further, sub-section (3) of Section 21A on which strong reliance was placed runs thus : “21A(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 earlier petition is pending, 8 shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.” This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old Sections 24 and 25 of C.P.C. It does not deal with the present Section 25, C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (Section 11 of the Amending Act 104 of 1976). By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State throughout the country. Conferal of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of Section 21A of the Hindu Marriage Act, 1955. It is, therefore, difficult to accept the contention that Section 21A of 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. 12. The learned counsel for the petitioner also relied upon the case reported in Bom. C.R. 5 (2004) 901 (Yogini Umesh Chivhane Vs. Umesh Uttamrao Chivhane) (Nagpur Bench), and observations made therein in paragraph Nos.5 and 6 thereof. 9 “5. The Apex Court had an occasion to deal with Section 21-A of the Act in the case of Guda Vijayalakshmi, cited (supra), wherein it is held that the provisions of Section 21-A of the Act are not exhaustive and the Court can exercise and take resort to the provisions of Sections 23 to 25 of the Code of Civil Procedure for directing transfer of the petitions for consolidated hearing. It was further held by the Apex Court that where a wife filed petition for judicial separation under Section 10 of the Act and by the husband for restitution of conjugal rights under Section 9 in courts in two different States, it will invariably be expedient to have a joint or consolidated hearing or trial of both the petitions by one and the same Court and in such a situation resort will have to be had to the powers under Sections 23 to 25 of the Code of Civil Procedure for directing transfer of the petitions for a consolidate hearing. 6. The aforesaid ratio can be made applicable to the facts and circumstances of the present case where the wife seeks transfer of the marriage petition filed by the husband for divorce at Wardha for trial along with the petition filed by her in the Court at Kelapur. It is obvious that in the matrimonial proceedings when the wife is living separately and taking shelter at her parents house she is placed in inconvenient position and circumstances and, therefore, it is desirable that the petition filed by the husband for divorce be transferred to a place where the petition has been filed by the wife seeking the relief of divorce.” 13. However, the learned counsel for the respondent submitted that the ruling cited by learned counsel for the petitioner of Nagpur Bench in the 10 case of Bom. C.R. 5 (2004) 901 (Yogini Umesh Chivhane Vs. Umesh Uttamrao Chivhane) (supra) is based upon the another ruling (supra) and the said ruling of Hon’ble Supreme Court is in respect of the powers of the Supreme court under Section 25 of the Code of Civil Procedure and there is no application of Section 25 of the Code of Civil Procedure in the present case and, therefore, submitted that the observations made in both the aforesaid rulings will not be of any aid and assistance to the case of the petitioner. 14. Thus, the Hon’ble Supreme Court (supra) has held that it is difficult to accept the contention that Section 21-A of Hindu Marriage Act excludes the power of transfer conferred upon Hon’ble Supreme Court by the Section 25 of the Code of Civil Procedure. Moreover, it is simultaneously observed in the said ruling that, as far as section 21-A of the Hindu Marriage Act is concerned, the marginal note of that Section itself makes it clear that it deals with power of transfer of petition and direct their joint or consolidated trial “in certain cases” and is not exhaustive. 15. Taking the cue from the said observations, Nagpur Bench of this Court in the case referred above i.e. Bom. C.R. 5 (2004) 901 (Yogini Umesh Chivhane Vs. Umesh Uttamrao Chivhane) (supra), had observed that the aforesaid ratio of the case of Supreme Court (supra) can be made applicable to the facts and circumstances of the present case in the hands of the said Court where the wife had sought transfer of the marriage petition 11 filed by the husband for divorce at Wardha for hearing along with the petition filed by her in the Court at Kelapur. 16. Hence, considering the said observations in the aforesaid rulings and considering the objections raised by learned counsel for respondent in that respect, since provision of Section 21-A of the Hindu Marriage Act is not exhaustive, resort is required to be taken to Section 24 of the Code of Civil Procedure. An analogy of the ratio laid down and observations made in the aforesaid Supreme Court case AIR (SC) (1981) 1143 Guda Vijayalakshmi Vs. Guda Ramchandra Sekhara Asstry) (supra) can be applied in the instant case also and although Hindu Marriage Petition No. 2/2009 filed by the petitioner wife for restitution of conjugal rights is later in point of time and although the H.M.P. No.539/2008 filed by the respondent husband for divorce is earlier in point of time, H.M.P. No. 539/2008 for divorce filed by the respondent, which is pending before Civil Judge, Senior Division, Thane can be transferred to Civil Judge, Senior Division, Nanded where H.M.P. No.2/2009 filed by the petitioner wife is pending, under Section 24 of the Code of Civil Procedure. 17. Moreover, another vital aspect that the petitioner wife has no independent source of income and she is residing with her father for the shelter at his mercy, cannot be overlooked. In the said context, respondent/ husband has contended that he is ready and willing to bear the expenses of travelling and relied upon the observations made in paragraph no.1 of the case 12 reported at [1997 (2) B.C.J. 216 (Supreme Court) (Shiv Kumari Devendra Ojha Vs. Ramajor Shitla Prasad Ojha and others). “The petitioner has filed this petition for transfer of proceedings, v.z., Succession Application No.43/95 along with Misc. Application No.23/96 titled Ramajor Shitla Prasad Ojha and others V. Shiv Kumari Devendra Ojha, pending in the Court of Civil Judge, Senior Division, Valsad, Gujarat to the competent Court of Civil Judge at Sadar District Pratapgarh in Uttar Pradesh. We had adjourned the matter by our order dated December 9, 1996 to find out whether the suit was still pending or stood disposed of. It is reported that the matter is still pending and the Civil Judge, Senior Division is yet to take up the matter. Learned counsel for the petitioner has stated that the petitioner being a lady is unable to travel from Uttar Pradesh to Valsad in Gujarat and it is really a great difficulty for her to meet the expenditure in that behalf. Shri Upadhyay, learned counsel appearing for the respondents has agreed to bear the expenditure for her travel and stay whenever she attends Court. Under the circumstances, we do not find that there is any justification for transferring the matter to Pratapgarh, U.P. Whenever the petitioner goes to the Court, the respondents would pay Rs.750/- (Rupees Seven hundred and fifty only) on each occasion to the petitioner and the amount would be paid to her in advance. The petitioner would intimate the Civil Judge, Senior Division who would direct the respondents to pay the amount to the petitioner. However, facts and circumstances of the present case and the facts and circumstances before Their Lordships differ from each other and 13 mere payment of travelling expenses by the respondent/ husband to the petitioner/ wife would not suffice the purpose considering the other facts of the matter also such as travelling from Nanded to Thane i.e. about 600 Kms. by the petitioner wife, being a female alone to attend the Court proceedings at Thane certainly would cause inconvenience to her and the said aspects cannot be ignored. 18. Apart from that, sight cannot be lost of the apprehension posed by the petitioner wife that if she is compelled to attend the Court proceedings filed by the respondent at Thane, there is every possibility of threats at the hands of respondent and she would be manhandled and therefore also interest of justice requires that she should not be compelled to travel all the way from Nanded to Thane for about 600 Kms. to attend the Court proceedings i.e. Divorce Petition No.539/2008 filed by the respondent before the Civil Judge, Senior Division, Thane. 19. Besides, there are two proceedings filed by the petitioner wife which are pending before the Courts at Nanded whereas there is only one proceeding pending before the Court at Thane and, therefore also the balance of convenience is in favour of the petitioner, and hence, it would be appropriate to transfer the said one proceeding i.e. Divorce Petition filed by the respondent at Thane to the Court of Civil Judge, Senior Division, Nanded. 14 20. In the circumstances, it is just, proper and convenient to transfer H.M.P. No.539/2008 filed by the respondent for divorce before the Civil Judge, Senior Division, Thane to the Court of Civil Judge, Senior Division, Nanded where H.M.P. No.2/2009 filed by the petitioner wife is pending and both the said petitions be heard together for recording of evidence and be decided, in accordance with law in the interest of justice. 21. In the result, present Misc. Civil Application No.2/2009 is allowed in terms of prayer clause (B) thereof and it is directed that H.M.P. No.539/2008 filed by the respondent for divorce and which is pending before Civil Judge, Senior Division, Thane be withdrawn from the said Court and be transferred to the Court of Civil Judge, Senior Division, Nanded where H.M.P. No.2/2009 filed by the petitioner for restitution of conjugal rights under Section 9 of the Code of Civil Procedure is pending and both the said petitions be clubbed together for the purpose of recording of evidence and be decided, in accordance with law, under Section 24 of the Code of Civil Procedure. Rule made absolute in above terms. In the facts and circumstances, there shall be no order as to costs. (S.P. DAVARE, J.)