VED PARKASH Vs. SEEMA

JUDGEMENT

(1.) This revision petition is directed against the order of the Additional District Judge(II), Jind, dated Feb., 3, 1986, whereby the petition under S.13 of the Hindu Marriage Act, 1955, (hereinafter called the Act), filed by the husband-petitioner Ved Parkash Garg against his wife-respondent Smt. Seema, seeking divorce on the ground of cruelty and desertion, has been stayed under S.10, Civil P.C. (hereinafter called the Code).

(2.) Admittedly prior to the filing of the said petition, the respondent wife has already filed petition under S.9 of the Act for restitution of conjugal rights against the petitioner which is pending in the Court of the Additional District Judge, Delhi, since Dec., 1984. The petitioner husband filed the petition under S.13 of the Act on Aug., 5, 1985, and it is pending in the Court of the Additional District Judge (II), Jind, in Haryana. When the notice of the said application was given to her, she moved an application under S.10 of the Code for staying the proceedings there in view of the petition filed by her in the Court at Delhi. The said application was opposed by the husband primarily on the ground that the relief being sought in the two petitions was different and as such the pendency of the previously instituted petition under S.9 of the Act shall not stand in the way of the petition under S.13 of the Act. However, the learned Additional District Judge vide impugned order came to the conclusion that in case the petition under S.13 is allowed to proceed and if ultimate by allowed, the petition earlier filed under S.9 of the Act by the wife in the Court at Delhi would be rendered infructuous as after the grant of the decree for divorce there would be no occasion for passing the order for restitution of conjugal rights. Consequently, the application under S.10 of the Code was allowed and the petition under S.13 of the Act was stayed till the decision of the petition filed by the wife under S.9 of the Act, pending in the Court at Delhi.

(3.) According to the petitioner, the proceedings under S.13 could not be stayed in view of the provisions of S.21-A of the Act, which provides for the transfer of petitions in certain cases. According to the learned counsel for the petitioner, even the petition under S.13 could not be transferred under the said provisions of the Act to the Court at Delhi and, therefore, the question of staying the proceedings therein under S.10 of the Code did not arise. In support of the contention, the learned counsel relied upon Gurmail Kaur v. Pritam Singh, 1979 Hindu LR 86 (Punj and Har). On the other hand, the learned counsel for the respondent wife submitted that the impugned order was just and proper and, therefore, there was no justification for interfering with the same in revisional jurisdiction. In any case, argued the learned counsel, it was a fit case which should be transferred to the Court at Delhi where the petition under S.9 filed earlier by the wife was pending so that both the petitions could be decided simultaneously by one court. According to the learned counsel, this Court has ample powers to transfer the proceedings pending in the Court at Jind, in Haryana, to the Court at Delhi, under S.23 of the Code. The learned counsel also submitted that S.21-A of the Act was not exhaustive and, therefore, it did not debar the staying of the proceedings in the subsequent petition or the transfer of the same to the Court where the earlier petition was filed. In support of the contention, the learned counsel relied upon G. Vijayalakshmi G. Ramachandra Sekhara Sastry, AIR 1981 SC 1143; State Bank of India v. M/s Sakow Industries, Faridabad (Pvt.) Ltd., New Delhi, AIR 1976 Punj and Har 321 and a judgement of the Karnataka High Court in Manjulatha v. Dr. M.L. Narasimhan, 1985 (2) Hindu LR 10.