The question involved in these Transfer Petitions is whether Section 21A of the Hindu Marriage Act, 1955 would apply to a situation where the husband has filed a petition for restitution of conjugal rights in a Family Court and thereafter the wife has filed a petition for divorce in another Family Court.

2. The wife is the petitioner in Tr.P.(C) No.44 of 2009 while the husband is the petitioner in Tr.P.(C) No.30 of 2009. The prayer made by the wife is to transfer the petition for restitution of conjugal rights filed by the husband, before the Family Court, Kozhikode to the Family Court, Ernakulam, where the petition for divorce filed by the wife is pending. The prayer made by the husband in the Transfer Petition filed by him is to transfer the petition for divorce filed by the wife before the Family Court, Ernakulam to the Family Court, Kozhikode, where the petition filed by the husband for restitution of conjugal rights is pending. It is not in dispute that the petition filed by the husband was earlier in point of time.

3. O.P.No.1792 of 2008 was filed by the wife before the Family Court, Ernakulam, seeking divorce under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act. O.P.No.1020 of 2008 was filed by the husband against the wife before the Family Court, Kozhikode under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Both these petitions are pending.

4. Section 21A of the Hindu Marriage Act reads as follows:

"21-A. 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) 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;

(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, 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, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code."

After the commencement of the Family Courts Act, instead of District Courts, the Family Courts have jurisdiction to deal with the matters mentioned in Section 21A of the Hindu Marriage Act.

5. The necessary ingredients to apply Section 21A are: (1) A party to the marriage has filed a petition for a decree for judicial separation under Section 10 or for a decree for divorce under Section 13 of the Act. (2) The other party to the marriage has thereafter filed another petition under Section 10 or under Section 13 either in the same District Court (Family Court) or in a different District Court (Family Court). If the petition is not under Section 10 or Section 13 of the Hindu Marriage Act, Section 21A would have no application. The purpose of Section 21A is clear from subsection (2) thereof. In a case where sub-section (1) applies, both the petitions shall be tried and heard togeth