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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
MADAN GOPAL VYAS, J.
Sapna Prajapat W/o Mukesh Prajapat - Appellant
Versus
Mukesh Prajapat S/o Sh. Ganesh Ram Prajapat – Respondent
S.B. Civil Transfer Appl. No.164, 257 of 2023
Decided on : 04-10-2023
Transfer Petition - Divorce Proceedings - Hindu Marriage Act 1955, Section 24, Section 21A - The court discussed the applicability of Section 24 of the Civil Procedure Code and Section 21A of the Hindu Marriage Act in the context of transfer petitions for divorce proceedings. It highlighted the discretionary nature of Section 24 and the mandatory nature of Section 21A, ultimately ruling in favor of transferring the divorce petition to the court where the earlier petition was filed.
Fact of the Case:
The husband and wife filed transfer petitions under Section 24 read with Section 151 of CPC, seeking to transfer divorce proceedings initiated by the other spouse to the place where their application is pending. The wife cited difficulty in traveling with a minor girl, while the husband mentioned his health issues as reasons for the transfer.
Finding of the Court:
The court analyzed the applicability of Section 24 of CPC and Section 21A of the Hindu Marriage Act, emphasizing the discretionary and mandatory nature of the respective provisions. It ruled in favor of transferring the divorce petition to the court where the earlier petition was filed, based on the statutory provisions and previous legal precedents.
Issues: The main issue was the applicability of Section 24 of CPC and Section 21A of the Hindu Marriage Act in the context of transfer petitions for divorce proceedings, considering the reasons presented by the husband and wife for seeking the transfer.
Ratio Decidendi: The court's decision was based on the interpretation of the discretionary nature of Section 24 of CPC and the mandatory nature of Section 21A of the Hindu Marriage Act, ultimately prioritizing the avoidance of conflicting decisions of competent courts.
Final Decision: The court dismissed the transfer petition preferred by the wife and allowed the transfer petition preferred by the husband, ordering the transfer of the divorce proceedings to the court where the earlier petition was filed.
JUDGMENT :
The present transfer applications preferred by the wife (SB Civil Transfer Petition No.164/2023) and husband (SB Civil Misc Transfer Application No.257/2022) are filed under Section 24 read with Section 151 of CPC. Since the issue in both the transfer petitions is same, therefore they are being decided by this common judgment.
2. Brief facts necessary for the disposal of transfer petitions are that the marriage between the parties was solemnized on 30.04.2015 according to Hindu rites and rituals at Pali. After marriage, the wife started living with her husband at Jodhpur. A girl child was born out of their wedlock in 2016. Certain differences arose between the couple and the husband filed an application under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (HMA, for short) for dissolution of marriage before the learned Family Court No. 1, Jodhpur Metropolitan on 17.02.2022. Subsequently, the wife preferred a divorce petition under Section 13 read with Section 25 of HMA before the learned Family Court, Pali on 25.03.2022. Both the parties have approached this Court praying for transfer of proceedings initiated by the other spouse to the place where their application is pending.
3. In SB Civil Transfer Petition No.164/2023-the wife prays that the Civil Case No.158/2022 preferred by the husband before the learned Family Court No.1, Jodhpur may be transferred to the Family Court, Pali as the divorce petition under Section 13 and 25 of the HMA filed by her is already pending adjudication before the learned Family Court, Pali.
4. Learned counsel for the wife argued that it is not possible for her to travel with a minor girl to Jodhpur on each and every date of hearing. The distance from Pali to Jodhpur is approximately 136 kms. It is further submitted that the wife is an unemployed woman having financial constraints and, therefore, it is even more difficult for her to travel to Jodhpur to attend proceedings on each and every date of hearing fixed by the trial court. Thus, it is prayed that the petition filed by the husband under Section 13(1) (ia)(ib) of the HMA for dissolution of marriage may be transferred to the Family Court, Pali.
5. SB Civil Misc. Transfer Petition No.257/2022 preferred by the husband is against the order dated 23.08.2022 passed by the learned Family Court, Pali in Civil Misc. Case No.58/2022 whereby the learned Family Court, Pali rejected the application filed by the husband under Section 21A(2)(b) of the HMA seeking transfer of the petition preferred by the wife under Section 13 and 25 of the HMA from the Family Court, Pali to Family Court No.1, Jodhpur Metropolitan, Jodhpur.
6. Learned counsel for the husband submits that after the application under Section 13(1)(ia)(ib) of the HMA was presented on 17.2.2022 in the Family Court No.1, Jodhpur Metropolitan, Jodhpur, notices were issued to the wife. The notices were duly served and the wife is regularly appearing in the said case. When he came to know about the fact that the wife has filed divorce petition under Section 13 and 25 of the HMA before Family Court, Pali on 25.3.2022 being Civil Misc. Case No.58/2022, he preferred an application under Section 21A(2)(b) of the HMA before the Family Court, Pali for transferring the proceedings and record of the Case No.58/2022 from Family Court, Pali to Family Court No.1, Jodhpur. The learned Family Court, Pali without considering the contents of the application in its right perspective, rejected the same vide impugned order dated 23.08.2022.
7. Learned counsel for the husband submits that the learned Family Court, Pali failed to consider the provisions of Section 21A(2)(b) of the HMA, which provides that subject to sub section (1) of Section 21, 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
The main legal point established in the judgment is the interpretation of the discretionary and mandatory nature of transfer provisions under Section 24 of CPC and Section 21A of the Hindu Marriage A....
In matrimonial proceedings initiated by the husband against the wife, the convenience of the wife must be considered for contesting the suit, and the court may transfer the proceedings accordingly.
The court holds that transfer applications under Section 24 CPC can be granted based on mutual consent, prioritizing the wife's convenience in matrimonial disputes.
The importance of the wife's residence in determining jurisdiction and considering the difficulties faced by the wife in contesting proceedings at a distant location in transfer petitions for matrimo....
The court established that in matrimonial disputes, the convenience of the parties and the consolidation of related cases in one jurisdiction are paramount considerations for transferring cases.
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