ORAL ORDER

[1.0.] This application is filed under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) by the applicant – wife praying for transfer of a Hindu Marriage Petition No.72 of 2022 pending at the Family Court, Bhavnagar to the Family Court at Jamkhambhalia, District – Devbhoomi Dwarka, on the ground that the distance between Bhavnagar to Jamkhambhalia is approximately 350 kms. one way and it is very difficult for her to attend the Court at Bhavnagar from Jamkhambhalia, and to travel at least more than 10 hours to and fro per adjournment as also she is having two children, one daughter and son, aged about 7 years and

10 years.

[2.0.] Heard Mr. Brijesh Ramanuj, learned advocate for the applicant – wife. It is submitted that there are two proceedings filed against the respondent – husband at Jamkhambhalia, one is prosecution under Section 498-A of the Indian Penal Code (hereinafter referred to as “IPC”) as also under Section 127 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) are filed by the applicant – wife at Jamkhambhalia, where in both the proceedings, respondent – husband is required to attend the cases. Therefore, he has requested that the prayer for transfer of aforesaid H.M.P. may kindly be considered and granted.

[3.0.] As against that, Mr. Maulik Shelat, learned advocate for the respondent – husband, submitted that husband has obtained a decree for restitution of conjugal rights after bi-parte hearing and the applicant – wife has not obeyed that decree despite execution is filed. He has further submitted that in view of Section 13(1A)(ii) of the Hindu Marriage Act, 1955, after obtaining a decree of restitution of conjugal rights which is not obeyed, there is nothing to be proceeded in the suit for divorce, as for non-compliance of the aforesaid decree, only consequential order to be passed in a divorce proceedings. It is further submitted that if that decree for restitution of conjugal rights is not obeyed for a year, under the said provisions, the decree for divorce is to be passed and it may not take full-fledged trial and therefore, it is not required to be transferred. He has further submitted that unlike other divorce proceedings, no full- fledge trial is to be conducted and it can be determined as a preliminary issue also and therefore, request for transfer of the said case may not be entertained. He has further submitted that the respondent – husband is ready to bear the cost of the applicant – wife for attending the Court at Bhavnagar, to and fro, on each adjourned dates. He has further submitted that in a prosecution under Section 498-A of “IPC”, which is filed at Jamkhambhalia, where the transfer of Hindu Marriage Petition is sought for, it has not been concluded as the applicant – wife is not attending the case for giving deposition before the Court. Therefore also, he has submitted that the case may not be transferred. At last, it is submitted that even if Court has come to the conclusion that case is required to be transferred, it should be transferred at a place in between and maybe nearby Jamkhambhalia but not at Jamkhambhalia as requested.

[3.1.] Relying on a decision in the case of Dharmendra Kumar Vs. Usha Kumar reported in AIR 1977 SC 2218, it is submitted that in a petition for divorce based on a decree granted for restitution of conjugal rights, suit can be determined based on determination of a preliminary issue. Relying on the aforesaid decision, it is submitted that there is no requirement of transferring the present proceedings being H.M.P. No.72 of 2022 pending in the Family Court, Bhavnagar filed by the husband seeking divorce based on decree of restitution of conjugal rights, which is not obeyed for more than a year.

[4.0.] Having heard the learned advocates for the appearing parties as also considering the documents annexed with the application and the submissions made, it emerges that the respondent – husband is facin