1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISCELLANEOUS CIVIL APPLICATION NO.67 OF 2008 Shri Bhaskarrao Mahadeorao Bobde : Applicant. versus Sou Sarita Bhaskarrao Bobde : Respondent. Shri P D Pise for the Applicant. Shri Amit B Borkar for the Respondent. CORAM : R.M.SAVANT, J. DATED : FEBRUARY 17, 2009 P.C. 1. By the above Miscellaneous Civil Application, the Applicant/Husband prays for transfer of the Hindu Marriage Petition No.169 of 2007 filed by the Respondent/Wife from the Court of the Civil Judge, Senior Division, Kolhapur to the Court of Civil Judge, Senior Division, Sangli where Hindu Marriage Petition No.121 of 2007 filed by the Applicant/Husband is pending. 2 2. The marriage between the Applicant and the Respondent took place 16th December 1997. Out of the said wedlock a son by name Vishal was born. It is the case of the Applicant that on 14th December 1999, the Respondent left the matrimonial home and the Applicant tried his level best to bring the Respondent back but all his efforts were in vain. The Applicant, therefore, issued a legal notice to the Respondent on 23rd May 2007. The Applicant thereafter filed Hindu Marriage Petition No.121 of 2007 under Section13(1)(a) of the Hindu Marriage Act for divorce in the Court of the learned Civil Judge, Senior Division, Sangli. 3. The Respondent thereafter filed Hindu Marriage Petition No.169 of 2007 under Section 9 of the Hindu Marriage Act in the Court of Civil Judge, Senior Division, Kolhapur for restitution of conjugal rights. As indicated above, it is the said Hindu Marriage Petition filed by the Respondent of which transfer is sought. 3 4. On behalf of the Applicant reliance is placed on the judgment of a learned Single Judge of this Court reported in 2003(1) ALL MR 1 in the matter of Alka Prasanna Gosavi v/s. Prasanna Parvanath Gosavi. In the said judgment it has been held that in terms of Section 21-A of the Hindu Marriage Act, 1956 a petition which is filed later in point of time is required to be transferred to the District Court where the proceedings filed earlier in point of time are pending, if the issue in both the petitions i.e. one filed by Applicant and the Respondent are similar. The relevant paragraph of the said judgment is Paragraph No.3 which is reproduced herein under :- “It is also pertinent to note that the proceedings initiated by the applicant in Misc.Civil Application No.90 of 2002 in the Family Court at Bandra, Mumbai were prior in time to the proceedings initiated by the respondent at Nasik. Being so, considering the provisions of Section 21 of the Hindu Marriage Act, and since the basic issue in both the proceedings being similar, both the proceedings are required to be heard by the same 4 Court and to be disposed of simultaneously. 5. On behalf of the Respondent reliance is placed on the Judgment of a learned Single of this Court reported in 2004(5) Bom CR 901 in the matter of Yogini Umesh Chivhane v/s. Umesh Uttamram Chivhane. In the said judgment it has been held that the powers under Section 21-A of the Hindu Marriage Act are not exhaustive and the Court can exercise and take resort to the provisions of Sections 21 to 25 of the Civil Procedure Code. The said Judgment relies upon the Judgment of the Apex Court reported in AIR 1981 SC 1143 in the matter of Vijayalakshmi v/s. Guda Ramchandra Sekhara Sastry. Relying upon the said judgment of the Apex Court, the learned Single Judge held that to avoid conflicting decisions being rendered by two different Courts, power under Section 23 to 25 of the Code would have to be exercised for transfer of the petition for a consolidated hearing. Relying upon the said judgment, it is submitted on behalf of the Respondent that the Applicant's Petition should be transferred to be heard along with the 5 Wife's Petition. 6. The facts before the learned Single Judge, were that the wife had filed Application for transfer. Such is not the case here. In the instant case, the husband has filed the above Misc. Civil Application for transfer invoking Section 21-A of the Hindu Marriage Act and, therefore, considering the judgment of the learned Single Judge and the judgment of the Apex Court in Vijayalaxmi's case, the Petition filed by the Respondent/Wife would have to be transferred to the Court of the learned Civil Judge, Senior Division, Sangli for a consolidated hearing. The above Misc. Civil Application would therefore have to be allowed and is accordingly allowed in terms of prayer clause (b). 7. As laid down by the Apex Court in the case of Shiv Kumari Devenndra Ojha v/s Ramajor Shitla Prasad Ojha reported in (1997) 2 SCC 452, consequent to the transfer, the Respondent would be 6 entitled to the travelling expenses. The distance between Sangli and Kolhapur is about 60 kms. The Respondent/Wife would, therefore, be entitled to get Rs.300/- from the above Applicant as travelling expenses on every date that she has to attend the Court at Sangli . [R.M.SAVANT, J]