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High Court Of Delhi
MANJARI SEN - Appellant
Versus
NIRUPAM SEN - Respondent
Civil Miscellaneous (Main) 217 of 1973
Decided On : 10/03/1973
TRANSFER OF CASE - HINDU MARRIAGE ACT - SECTION 23(3) - CONFLICT OF DECISIONS - BALANCE OF CONVENIENCE - BIAS OF JUDGE - TRANSFER OF CASE FROM DELHI TO PATNA - PETITION DISMISSED.
Fact of the Case:
The petitioner, a wife, filed a petition under section 10 of the Hindu Marriage Act, 1955 for judicial separation against her husband, the respondent, in the Court of the District Judge, Patna. The respondent had earlier filed a similar petition in the Court of the District Judge, Delhi. The petitioner filed a petition in the Delhi High Court under sub-section (3) of section 23 of the Code of Civil Procedure, praying for the transfer of the Delhi petition to the Patna Court.
Finding of the Court:
The Delhi High Court dismissed the petitioner's petition for transfer of the case from Delhi to Patna. The court held that the balance of convenience was in favor of a trial at Delhi, considering the majority of witnesses belonged to Delhi and the allegations of mental cruelty primarily occurred there. The court also found no evidence of bias on the part of the District Judge, Delhi.
Issues: 1. Whether the petition for transfer of the case from Delhi to Patna should be allowed? 2. Whether there was a conflict of decisions that needed to be avoided? 3. Whether the balance of convenience favored a trial at Delhi or Patna? 4. Whether the District Judge, Delhi, was biased against the petitioner?
Ratio Decidendi: 1. The court held that the requirement of prior notice under sub-section (3) of section 23 of the Code of Civil Procedure was not mandatory and the failure to give such notice did not render the petition incompetent. 2. The court observed that the principle of 'plaintiff being the arbiter litis' was not applicable in a situation where two different actions were filed in two Courts having jurisdiction. 3. The court held that the balance of convenience was in favor of a trial at Delhi, considering the majority of witnesses belonged to Delhi and the allegations of mental cruelty primarily occurred there. 4. The court found no evidence of bias on the part of the District Judge, Delhi, and dismissed the allegation as unjustified.
Final Decision: The Delhi High Court dismissed the petitioner's petition for transfer of the case from Delhi to Patna.
( 1 ) BY this petition under sub-section (3) of section 23 of the Code of Civil Procedure, the petitioner prays that the petition (Hindu Marriage Act Case No. 184 of 1973) filed by the respondent and pending in the Court of the District Judge, Delhi, within the jurisdiction of this High Court be transferred to the Court of the District Judge, Patna, within the jurisdiction of the Patna High Court. The respondent is the husband and the petitioner is his wife. The aforesaid petition has been filed by the respondent under section 10 of the Hindu Marriage Act, 1955 for a decree of judicial separation primarily on the ground of mental cruelty.
( 2 ) THE parties were married at Patna on February 4, 1971. After the marriage the petitioner lived with the respondent at Delhi for about twenty days when she went back to Patna but returned to Delhi in or about May, 1971 and stayed here upto about July, 1971. She again went back to Patna in July, 1971 to join her college and she remained there till about March, 1972. Then she came back to Delhi where the parties stayed together till about the middle of July, 1972 when they left for Moscow where the respondent was posted. But the petitioner returned to India in or about the middle of November, 1972. It is not disputed by the petitioner that since July, 1973, the petitioner is living at Delhi where she is studying in a local college.
( 3 ) THE respondent filed the aforesaid petition in the Court of the District Judge, Delhi, on March 29, 1973. Shortly thereafter, on May 16, 1973, the petitioner filed the petition against the respondent in the Court of the District Judge, Patna, under section 10 of the Hindu Marriage Act, 1955 in her turn alleging mental cruelty against respondent and praying for a decree for judicial separation.
( 4 ) THE petition before me was filed in this Court on August 8, 1973. It may also be stated that the respondent has filed an application under section 10 of the Code of Civil Procedure in the Court of the District Judge, Patna for stay of proceedings in the petition filed by the petitioner for judicial separation in that Court. The allegations made by the petitioner in the petition filed by her at Patna have been raised by her in the additional pleas to the written statement which she has filed in the Court of the District Judge, Delhi, in answer to the petition filed by the respondent.
( 5 ) THE main contention on behalf of the petitioner is that a conflict of decisions by two Courts should be avoided and, therefore, it is desirable that the matter is decided only in the Court of the District Judge, Patna as the balance of convenience is also in favour of the trial being held at Patna even though the petitioner filed her petition lor judicial separation after the respondent had filed this petition for judicial separation. It is also contended that the District Judge, Delhi, is biased in favour of the respondent.
( 6 ) ON behalf of the respondent one prehminary objection which has been raised is that the petitioner had challenged the jurisdiction of the District Judge, Delhi, to try the respondent s petition which was dismissed but against which the petitioner has filed a revision which is pending in this Court. It is, therefore, contended that the petitioner cannot invoke sub-section (3) of section 23 of the Code which can be invoked only if jurdisdiction of the Courts at both the places is admitted. This preliminary objection need not detain me because Mr. Basudeva Prasad, learned counsel for the petitioner, has stated at the bar before me that the aforesaid revision is not going to be pressed.
( 7 ) THE other preliminary objection raised by the respondent is that a petition under sub-section (3) of section 23 of the Code can be filed only after notice of an intended petition under section 22 of the Code has been given by the defendant to the other parties to the case. It is stated that no such notice was given and the requirement of notice b
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