Signed by: REENA SUDHIR

DAS

Signing time: 22-11-2023

16:42:30

Signature Not Verified

2

1]

None for the respondent despite service of notice. On

11.09.2023 also no one appeared on behalf of the respondents

despite service of notice.

2]

The matter is heard finally.

3]

This miscellaneous petition has been filed under Article 227

of the Constitution of India against the order dated 9.3.2022 passed

by the First District Judge, Sendhwa District Barwani in RCS-

HM.No.9/2018; whereby, the application filed by the

respondent/wife dated 15.12.2021(Annexure P-4) for stay of suit,

has been allowed partially, and it is directed that till the

respondent/wife's petition filed under Section 9 of the Hindu

Marriage Act (hereinafter to be referred to “Act of 1955”) for

restitution of conjugal rights pending before the Civil Court Senior

Division, Nasik, Maharashtra is decided, the further proceedings of

the present case filed by the petitioner under Section 13(1) (ia) (ib)

of the Act of 1955, shall remain stayed.

4]

In brief facts of the case are that the marriage of the

petitioner/husband and respondent/wife was solemnised on

23.11.2008, however due to matrimonial discord an application for

divorce was filed by the petitioner on 21.03.2018 (Annexure P/1) in

which written statement has already been filed by the respondent

on 18.6.2019 (Annexure P/2), and the affidavit under Order 18 Rule

4 of the Code of Civil Procedure, 1908 has already been filed by the

Signed by: REENA SUDHIR

DAS

Signing time: 22-11-2023

16:42:30

Signature Not Verified

3

petitioner/husband, and the respondent was given last opportunity

to cross examine the petitioner's witness on 30.11.2021. However,

instead of cross examining the witness, on the next date an

application dated 15.12.2021 was filed by the respondent/wife to

the fact that she has already filed a petition for restitution of

conjugal rights under Section 9 of Act of 1955 in the court at

Nahsik, Maharashtra, and thus, till the aforesaid application is

decided finally, further proceedings in the present case which

relates to divorce be stayed. The said application has been allowed

vide order dated 9.3.2022, and being aggrieved, this miscellaneous

petition has been filed by the petitioner.

5]

Counsel for the petitioner has drawn attention of this Court to

the application filed by the respondent wherein she has stated that

either the case be stayed or it may be transferred to the Civil Court

at Nasik where the respondent has filed an application under

Section 9 of the Act of 1955, and the learned judge of the Family

Court has although rejected the claim of the respondent to transfer

this case to Civil Court, Nasik, however, the Court opined that since

the restitution of conjugal right is more important aspect then the

divorce, hence, it would appropriate that the present divorce

application be stayed.

6]

Counsel for the petitioner has also drawn attention of this

Court to Section 21 (A) of the Act of 1955 which provides powers

to transfer the case under certain circumstances.

Signed by: REENA SUDHIR

DAS

Signing time: 22-11-2023

16:42:30

Signature Not Verified

4

7]

Counsel for the petitioner has also relied upon the decision of

the Coordinate Bench of this Court in the case of Balvir Singh

Gurjar @ Rinku Vs. Nitu reported as 2015(4) MPLJ 184 in

which the Court has held that the provision of Section 9 of the Act

of 1955 would also be attracted under Section 21(A) of the Act of

1955 which refers to Sections 10 and 13 of the Act of 1955 only.

Thus, it is submitted that the only course available to the Court was

to transfer the case under law which has been filed by the

respondent/wife, and not to stay the further proceedings of the

divorce petition which was filed earlier in time than the application

for restitution of conjugal rights which was filed on 30.11.2021, and

the divorce petition filed on 21.03.2018. Thus, it is submitted that

the impugned