Section 21-A of the Hindu Marriage Act, 1955 provides a specific mechanism for the transfer of certain petitions under the Act, and that mechanism does not apply to petitions for restitution of conjugal rights under section 9 of the Act.

JUDGMENT - Waikar M.R., J.: - A question of some importance involved for consideration in this Miscellaneous Civil Application is whether the powers exercisable by the High Court under section 23(3) of the Code of Civil Procedure (hereinafter called the Code) can be invoked for transfer of a petition under the Hindu Marriage Act, 1955 (hereinafter called the Act) to any Court subordinate to a different High Court.

2. The present petitioner (wife) was married to the non-applicant ~

(husband) on 7th December 1977 at Mussoorie. The father of the non-applicant is one Bholanath Maharaj, a religious priest having his devotees at several places. After the marriage the spouse along with Bholanath Maharaj went to Delhi and after staying there for a couple of weeks came \0 Nagpur and were residing here. The applicant resided at Nagpur with her husband and her in laws only till 19th January 1979 whereafter she went back to Mussoorie and has been living there with her parents and with her sister.

3. The applicant filed a matrimonial petition under section 13 of the

Act in the Court of Civil Judge at Mussoorie (Dehradun) being Marriage Petition No. 68 of 1979 on 20th March 1979 for divorce on the ground of cruelty. The non-applicant appeared in response to the summons and filed

his written statement in that suit. The non-applicant (husband) then filed a Marriage Petition under section 9 of the Act for restitution of conjugal rights on 16th April 1979 in the District Court at Nagpur, being Hindu Marriage Petition No. 92 of 1979 and the same is now pending in the Court of Civil Judge, Senior Division, Nagpur.

4. The applicant filed the present application under section 23(3) of the Code for transfer of Hindu Marriage Petition No. 92 of 1979 pending at Nagpur, which is subsequently instituted petition, to the Court at Mussoorie to be tried and decided along with her Marriage Petition No. 68 of 1979. It is submitted that the non applicant filed this petition at Nagpur only as a counterblast in order to harass her that she has no sufficient means to come to Nagpur to resist that claim, that common questions of fact and law would arise in both the matters and that a common decision in both the matters by one single Judge would avoid any conflict of judicial decisions.

5. This petition for transfer is resisted by the non-applicant mainly on the ground that this Court has no jurisdiction to order transfer of his case to a Court at Mussoorie as prayed for.

6. Shri Choudhary the learned counsel for the applicant, submitted that in her previously instituted petition by the applicant for dissolution of the marriage, pending at Mussoorie the non-applicant can under the amended section 23A of the Act make a counter claim and seek a relief of restitution of conjugal rights. The points for determination in both the matters, be submitted, would be whether the applicant was cruelly treated, as alleged by the wife, or whether she had voluntarily withdrawn from her marital home without any reasonable excuse, as contended by the husband. He further submitted that a petition under the Act is a suit, that under section 21 of the Act all proceedings under the Act are to be regulated, as far as may be, by the Code and by virtue of section 23(3), of the Code, the High Court would be empowered to transfer any suit pending in any subordinate Court to any other Court subordinate to a different High Court.

7. Shri Ghatpande, the learned counsel for the non-applicant on the other hand submitted that when the non applicant has initiated an action for restitution of conjugal rights by filing a petition at Nagpur, he cannot be compelled to lay a counter claim under section 23-A of the Act in the petition of the applicant at Mussoorie. In order to succeed in his petition all that he would be required to establish, he submitted, is that the applicant, withdrew from his society without any reasonable excuse. The petition under the Act, he submitted, cannot be equated to a suit, as mat

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