R S SHYAMALA Vs. G RAJASEKHAR

JUDGEMENT

(1.) Civil Petition No. 191/ 94 is filed by the husband praying for withdrawal of M.C. No. 593/93, on the file of the Principal Family Court, Bangalore, and to transfer the same to the court of IInd Additional Civil Judge, Mysore, where another M.C. No. 56/91 is pending and to try both the cases together. C.P. No. 520/93 is filed by the wife praying to withdraw M.C. No. 56/91, on the file of the IInd Additional Civil Judge, Mysore, and to transfer the same to the Court of Principal Family Court at Bangalore for being clubbed with M.C. No. 593 of 1993, on the file of the Principal Family Court at Bangalore for a common trial.

(2.) The facts very briefly are that the marriage between the parties took place on 20-5-1974 at Bangalore. After the marriage the wife began to live with the husband at Mysore. They have two children. Children are in the custody of the husband. Due to matrimonial differences the wife was obliged to leave the house of the husband at Mysore on 4-2-1991. The husband filed a petition for divorce in M.C. No. 56/91 which is pending in. the court of Civil Judge at Mysore. The wife has only now entered appearance. The wife filed a petition against the, husband for restitution of conjugal rights on 12-8-1993 which is pending in M.C. Nos. 593/93 on the file of the Principal Family Court, Bangalore. The husband has entered appearance in that case and it is set for filing the objections by the husband. The husband has prayed that both the cases be tried at Mysore. His contention is that the children are in his custody and are studying in 3rd and 9th standards and that his presence is necessary to lookafter the children. Further it is contended that the husband is working in the Department Botany in J.S. College, at Mysore. The nature of work involves teaching and therefore his presence is necessary at Mysore. The husband also states that the petition filed by the wife for restitution of conjugal rights is only a counter-blast. The case of the wife is that she was driven out of the matrimonial home and she was forced to go to Bangalore to reside with her father. The wife is ready and willing to live with the husband and take care of the children. The father of the wife made several trips to Mysore taking his daughter, the wife, to enable them to reconcile their differences. The wife also states that the husband has managed to obtain certain medical certificates because of his influence at Mysore and therefore submits that both the cases ought to be tried at Bangalore. The wife is even now ready and willing to join the husband and that is why she was forcetd to file the petition for restitution of conjugal rights. The wife who is dependent on her father states that it is very difficult to travel to Mysore to attend the court proceedings. She has to incur expenses and she is unemployed and has to depend on her father for her maintenance. Sometimes on account of azards of litigation she will be obliged to stay overnight at Mysore and being a lady it would be difficult for her to stay alone at Mysore. The contention of the husband is that the wife is a mental patient and it is not possible to cure her disease. It is also stated by the husband that the wife was taken by her father for treatment at Nimhans, Bangalore. The divorce petition filed by the husband is under S. 13(1)(iii) of the Hindu Marriage Act, 1955, alleging that the wife is suffering from mental disorder.

(3.) Learned Counsel appearing for the husband submitted that his petition is earlier in point of time and therefore the petition filed by the wife should be withdrawn and transferred to the Court at Mysore. He further relied on the provisions of Section 21 A(2) rof the Act and stated that S. 21 A stipulates that petition presented later shall be transferred to the court in which the earlier petition was presented and both the petitions shall be heard and disposed of togther. Section 21 A deals with only petitions filed under Section 10 or Section 13 of the Hindu Marriage Act. The petition filed by the wife is under Sec. 9 of the Act for restitution of conjugal rights. Therefore S. 21A will have no application to the facts of the case. The second contention of the learned Counsel for the husband is that the wife has already entered appearance in the case filed by the husband at Mysore and that there could be no difficulty for the wife to attend the proceedings at Mysore. When the husband himself claims that the wife is suffering from mental disorder and was treated by a doctor, it appears that the wife by the very admission of the husband will not be in a position to travel to Mysore. In view of the allegations made by the husband that the wife is mentally unsound, I am not convinced that the wife should be forced to go to Mysore to contest the case, every time as she requires financial assistance from her father.