IMPORTANT POINT
S. 21-A covers cases filed under S. 9 of the Act, by operation of S. 21 of the Act, subsequent petition must be transferred.

Sujoy Paul, J.—Since similar question of law is involved, these petitions were analogously heard on joint request and decided by this common order.

M.C.C. No. 364/2012:

2. This petition is filed by the husband under sections 22, 23 and 24 of Code of Civil Procedure for transferring Case No. 67/2012 (Restitution) filed by the wife. The said case is filed before Additional District Judge, Morena. It is prayed that same be transferred to Gwalior.

M.C.C. No. 253/2013:

3. This petition is filed under section 24 of the Code of Civil Procedure by the wife. It is prayed that Case No. 349/2012 (New No.199A/2012) filed under Section 13 of Hindu Marriage Act, 1955 (for short, the ‘Act’) be transferred from Gwalior to Morena.

4. Admittedly, the husband has filed the case under Section 13 of the Act prior in time. The wife filed petition for restitution of conjugal right lateron.

5. Shri S.S.Chauhan, learned counsel for the petitioner relied on Section 21A of the Act. He submits that the petition of wife be transferred to Gwalior. He also relied on Prakash v. Smt. Kavita, AIR 2008 Raj 111.

6. Per Contra, Shri RVS Ghuraiya contends that in Section 21A of the Act, the petitions filed under Sections 10 and 13 of the Act are covered. Section 21A does not deal with the proceedings under Section 9 of the Act. Thus, there is no scope of transfer of wife’s petition to Gwalior. He by relying on Saroj Devi Kushwaha v. Satendra Singh Kushwaha, 2010(2) MPLJ 633; and; Jyoti Bangde v. Sanjay Bangde, 2010 (4) MPLJ 391, submitted that in matrimonial dispute, the balance of convenience is to be seen. In the matter of difficulty and convenience, the women require more consideration in comparison of men.

7. I have bestowed my anxious consideration on rival contentions of the parties and perused the record.

8. No doubt, in Section 21A of the Act, the law-makers have not included proceedings under Section 9 of the Act. Section 21A deals with the proceedings preferred under sections 10 and 13 of the Act. However, this aspect was considered by the Apex Court in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry, AIR 1981 SC 1143. The Apex Court has considered the judgment of Nagpur Bench of Bombay High Court in Priyavari Mehta v. Priyanath Mehta, AIR 1980 BOM 337, which was delivered on the strength of decision of Punjab & Haryana High Court in Smt. Rama Kanta v. Ashok Kumar, AIR 1977 PUNJ & HAR 373. The Nagpur Bench after taking into account Section 21A of the Act opined that “the effect of Section 21A is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under Sections 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section. Precisely, this is the argument of Shri Ghuraiya in the present case. The Apex Court in Guda Vijayalakshmi (supra) opined that this view is not correct. It is held that “as stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof Section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial, “in certain cases”. Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court, of a husband’s petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society without reasonable excuse under Section 9 of the Act and the wife’s petition for judicial separation against her husband on ground of cruelty under Section 10 of the Act in order to avoid conflicting decisions being rendered by two different Courts. In such a situation resort will have to be had to the powers under Sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading Section 21A in the manner done by