Point of Law: Section 21A of Act contains provisions for transfer of petitions in certain situations.

JUDGMENT :

P.G. Ajithkumar, J.

The petitioner in Transfer Petition (C) No.76 of 2023 is the appellant in this appeal filed under Section 5(i) of the Kerala High Court Act, 1958. The Transfer Petition was filed by the appellant seeking to transfer O.P.No.2752 of 2019 pending on the files of the Family Court, Ernakulam to the Family Court, Thrissur. That petition was dismissed as per the order dated 25.05.2023.

2. The respondent entered appearance through his learned counsel on 16.06.2023.

3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

4. The order dated 25.05.2023 in Transfer Petition (C)

No.76 of 2023 reads as follows:-

“Annexure I is the petition for divorce instituted by the husband pending before the Family Court, Ernakulam, and Annexure II is the petition for restitution of conjugal rights instituted by the wife pending before the Family Court, Thrissur. The wife is aged 69 years and the husband is aged 72 years. Both are age old persons standing on the same pedestal regarding old-age. No other special reason was brought to the notice of this court. Tr.P.(C) will stand dismissed.”

5. The appellant is the wife of the respondent. They are Hindus and governed by the provisions of the Hindu Marriage Act, 1955. Annexure-I is a copy of the petition in O.P.No.2752 of 2019. It was filed on 20.11.2019 by the respondent seeking a decree of divorce before the Family Court, Ernakulam. Annexure-II is a copy of the petition in O.P.No.1119 of 2019. It was filed before the Family Court, Thrissur on 18.06.2019 by the appellant seeking a decree of restitution of conjugal rights. The appellant wants to transfer O.P.No.2752 of 2019 from the Family Court, Ernakulam to the Family Court, Thrissur. Two grounds urged are her convenience and requirement of a joint trial of two cases. The learned Single Judge did not accept the contentions of the appellant by holding that the reasons stated were insufficient for a transfer.

6. The Apex Court in Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry [(1981) 2 SCC 646] held that ordinarily a petition for divorce and a petition for restitution of conjugal rights between the same parties shall be heard and decided together in order to avoid conflicting decisions. A joint trial of two cases is possible only if both cases are in one court. In that view of the matter, a transfer of one of the cases is unavoidable.

7. Both Annexure I and II petitions were filed under the provisions of the Hindu Marriage Act, 1955. Section 21A of the said Act contains the provisions for transfer of petitions in certain situations. Section 21A reads,-

“21A. 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 subsection (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;

(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