Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Transfer Application No. 24 of 2007 Smt. Ranjeeta Sani W/o Sanjay Kumar Saini, D/o Sri Ashok Gahlot, 186 South West Block Alwar, P.S. Arawali Vihar Alwar Rajasthan. ....Petitioner Vs Sanjay Kumar Sani, S/o Prem Chand Sani, R/o 164 Saket Colony Pargana and Tehsil Roorkee, District Haridwar and another. ......Respondents Dated:-17-6-2008 Hon’ble B.S. Verma, J. Heard Sri Nagesh Agarwal, learned counsel for the petitioner and Sri K.P. Upadhyay, learned Additional C.S.C. for the respondent No.2. None appeared for the respondent No. 1 despite of sufficient service. The present Civil Transfer application has been filed by the petitioner with a prayer to transfer the case No. 54 of 2007 Sanjay Sani Vs. Ranjeeta Sani pending before the Judge Family Court Roorkee, District Haridwar to the Court of District Judge (Matrimonial Jurisdiction) Alwar, Rajasthan. Brief facts giving rise to the present application are that the marriage of the petitioner was solemnized with the respondent No.1 i.e Sanjay Kumar Sani on 17-11-2003 in Alwar Rajasthan as per Hindu rights and rituals. Due to illegal demand of petitioner, the parents of the petitioner took back her to the parental home on 3-8-2005. According to the petitioner she was pregnant at that time. On 12-3-2007, the divorce petition was filed under Section 13 (1) (A) of Hindu Marriage Act 1955 by the petitioner before the Court of District Judge, Alwar Rajasthan in which the 2 notice was issued to the respondent No.1 and is pending for decision. The petition was registered as petition No. CM No. 38198/2007, Ranjeeta Vs. Sanjay. Subsequent to that the respondent No.1 has also filed the divorce petition under Section 13 of Hindu Marriage Act 1955 before the Judge Family Court Roorkee, District Haridwar on 5-4- 2007, which was registered as Petition No. 54 of 2007, Sanjay Sani Vs. Ranjeeta Sani. The transfer application has been filed by the petitioner on the ground that Section 21-A of the Hindu Marriage Act specifically provide that if a suit under Section 13 of Hindu Marriage Act is pending in one court and latter on another party filed the divorce petition in another court, the latter suit will be transferred to the earlier court. Section 21-A of the Hindu Marriage Act reads as under:- “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. 3 (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 late 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.” I have heard learned counsel for the petitioner and perused the averments made in the application and the provision of Section 21-A (1)(b) of the Hindu Marriage Act read with Section 23(3) of C.P.C. By a perusal of Divorce Petition and order sheet it is obvious that the Divorce petition No. CM No. 38198/07, Ranjeeta Vs. Sanjay was filed prior to filing petition No.54 of 2007 Sanjay Sani Vs. Ranjeeta Sani by the respondent No.1, which was pending for decision before the Judge Family Court, Roorkee, District Haridwar. Learned counsel for the petitioner has relied upon the judgment of Smt. Vempati Sarda Vs. Vempathi Kaladhar reported in AIR 2003 NOC 537 (Andd. Pra) wherein it was held that the provision under Section 23(3) and 25 of Civil P.C. are independent provision and absolutely there is no conflict between these two provisions. Merely, because the High Court is empowered to order transfer of a proceeding pending before a Sub-ordinate Court within its jurisdiction to another Court subordinate to another 4 High Court, it may not come in the way of the powers which may be exercised by the Supreme Court under Section 25 of the Code. Hence, by a close reading of both the provisions it is clear that the power under Section 23(3) of the Code can be definitely exercised by the High Court and the same is not in any way curtailed by Section 25 of the Code. Learned counsel for the petitioner has further relied upon the judgment of Smt. Sushma Mishra Vs. Mithilesh Kumar Mishra reported in 2008 (70) ALR 128 wherein a case of Supreme Court was also discussed in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527 and in Jagatguru Sri Shankaracharya Jyotish Peethadhiswar Sri Swami Swaroopanand Saraswati Vs. Ramji Temple and others reported in AIR 1979 MP 50 wherein it has been held that the Court which is outside the jurisdiction of the High Court, is competent to entertain and decide the suit, the High Court while exercising its powers under Section 23(3) can transfer a case from its jurisdiction to a Court subordinate to the jurisdiction of another High Court. In view of the Section 21-A (1) (b) of the Hindu Marriage Act read with Section 23(3) of C.P.C. and in view of the verdict of aforementioned Judgments I am of the view that it is a fit case for transfer. The Civil Transfer application is allowed. The Case No. 54 of 2007, Sanjay Sani Vs. Ranjeeta Sani, pending before the Judge family court Roorkee, District- Haridwar is transferred to the Court of District Judge (Matrimonial Jurisdiction), Alwar Rajasthan. Both the petitions referred above shall be heard together and disposed of together. All pending applications stands disposed of accordingly. (B.S. Verma,J) Dated: - 17-6-2008 M.K.