JAYSHREE Vs. MANOHAR

JUDGEMENT

(1.) The applicant Jayashree and the respondent Manohar are wife and husband and the wedlock still subsists. The wife has filed a petition before the District Judge, Yeitmal under section 10 of Hindu Marriage Act for judicial separation along with alimony against her husband. The petition is pending before the District Judge, Yeotmal. The petitioner is staying at Yeotmal with her brother. Respondent, on the other hand, is a practising lawyer at Murtizapur in Akola district. The respondent also has filed another petition (Hindu Marriage Petition No. 188/83) before the District Judge, Akola and this petidon is against his wife under section 9 of the Hindu Marriage Act for restitution of conjugal rights. Suffice it to say that the petition filed by the wife was an earlier petition having been filed in July, 1983, whereas the subsequent petition was filed by the husband on or about 11-8-1983 in Akola Court. Both these petitions are pending in two different courts.

(2.) The petitioner (wife) has filed the present application under section 21-A of the Hindu Marriage Act, 1955 read with sections 24 and 151 of the Code of Civil Procedure for transferring the petition (pending before the District Judge, Akola) to the Court of District Judge. Yeotmal, so that both the applications (one filed by the wife and another filed by the husband) can simultaneously be tried and decided by the same Court. Mr. S.R. Deshpande for the respondent relying on section 21-A of the Hindu Marriage Act urged that the petition pending before the District Judge, Akola being under section 9 of Hindu Marriage Act, does not fall within the category enumerated in section 21-A and therefore, this Court would not be justified in transferring that matter to Yeotmal Court. Raliance was placed on two rulings reported in Priyavari Vs. Priyanath (AIR 1980 Bombay 337) and Smt. Rama Kanta Vs. Ashok Kumar (AIR 1977 Punjab and Haryana 373). Both these rulings have been overruled by the Supreme Court in G. Vijayalakshmi Vs. G. Ramachandra Sekhara Sastry (AIR 1981 Supreme Court 1143), where the Supreme Court has observed :

(3.) In the present case, the husband claims a decree for restitution of conjugal rights on the ground that his wife has deserted his company without any lawful excuse. He wants this relief from Akola Court. The wife on the other hand claimes a relief of judicial separation on the ground of cruelty (under section 10 of the Hindu Marriage Act) from the Yeotmal Court. The wife is residing at Yeotmal along with her brother. It is said that she is not an earning member and she is dependent upon her brother. Apart from going into this question of fact at this stage, one thing is certain viz. that it will be in interest of both the parties to avoid the possibility of different findings of facts by two different courts. It is possible that one Court may direct restitution of conjugal rights and another Court may direct judicial separation. The position will be anomalous. It is proper that both these cases should be tried and decided by one and the same Court.