SAGARIKA DEVI @ SAGARIKA PRASAD Vs. VIJAY KUMAR

JUDGEMENT

(1.) This petition has been filed under Sec. 24 of the Code of Civil Procedure, 1908, by the petitioner-wife for transfer of Matrimonial Suit no. 16 of 2015, Miscellaneous Case no. 35 of 2013, Miscellaneous Case no. 36 of 2013 and Matrimonial Suit no. 38 of 2014 pending in the court of Principal Judge, Family Court, Ranchi to the court of Principal Judge Family Court, at Jamshedpur.

(2.) It is submitted by the counsel that the petitioner is residing at Jamshedpur with her aged father, who is a retired Government servant. That she has to look after her minor daughter Shreya Kumari aged 7 years. It is submitted that the petitioner-wife has also filed a case under section 498A of the Indian Penal Code against the opposite party-husband at Jamshedpur. That O.P. has been appearing and facing the trial in the said case in the court, at Jamshedpur. That, the petitioner-wife is facing great difficulty and hardship in travelling and attending the courts at Ranchi and there is no one to look after her daughter and her aged father. That her mother died in Aug., 2015. On the above grounds, the petitioner has sought for transfer of the above mentioned cases from the court of Principal Judge, Family Court, Ranchi, to the Court of Principal Judge, Jamshedpur.

(3.) Per contra, Mr. Ashok Kumar Yadav, learned counsel for the opposite party (O.P.), has submitted that the O.P./husband had earlier filed Matrimonial Suit no. 52 of 2011, wherein, the petitioner-wife had appeared and filed her written statement, but, she did not participate in the proceeding. Where after an ex-parte judgment of judicial separation was passed on 04.04.2013, by the Principal Judge, Family Court, Ranchi. Against the said judgment, the petitioner-wife had filed Miscellaneous Case no. 35 of 2013 in the court of Principal Judge, Family Court, Ranchi, for setting aside the ex-parte order. The petitioner also filed Miscellaneous Case no. 36 of 2013 under Sec. 24 of the Hindu Marriage Act. That, Miscellaneous Case no. 35 of 2013 was dismissed on 27.09.2014 and Miscellaneous Case no. 36 of 2013, was kept in abeyance. Consequent thereto, the petitioner-wife had preferred First Appeal no. 566 of 2014 before the Hon 'ble High Court against the order dated 04.04.2013 and 27.09.2014, respectively. The Hon 'ble High Court after hearing the petitioner, disposed off F.A. no. 566 of 2014 vide order dated 07.05.2015, giving liberty to the petitioner to raise all the points in Matrimonial Suit no. 16 of 2015, filed by opposite party-husband for decree of divorce in terms of order dated 04.04.2013 in Matrimonial Suit no. 52 of 2011. That, the petitioner-wife has also filed Matrimonial Suit no. 38 of 2014 under Sec. 9 of the Hindu Marriage Act in the court of Principal Judge, Family Court, Ranchi. It is urged that the petitioner has been appearing in the said cases before the Family Court, Ranchi and she had never raised any grievances or objection regarding the continuation of the cases in the Family Court at Ranchi. Learned counsel has argued that Sec. 21A of the Hindu Marriage Act, 1955 mandates that if the petition under the said Act has been presented by a party, to a District Court having jurisdiction, praying for decree of judicial separation under Sec. 10 or for decree of divorce under Section 13 and another petition under the Act has been presented thereafter, by the other party, praying for decree of judicial separation under Sec. 10 or for decree of divorce under Sec. 13 on any ground, whether in the same District Court in the same State or in a different State, the petitions shall be dealt with in terms of Sec. 21A(2) of the Hindu Marriage Act, 1955. It is argued that Sec. 21A mandates that if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court and if the petitions are presented to different District Courts the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the petition has been filed earlier. It is argued by the learned counsel that indisputably the High Court is empowered to transfer the cases in terms of Sec. 24 but, in the instant matter the cases are at the fag end of trial and the Family Judge, Ranchi court has been in seisin of the matter and for doing substantial justice it is necessary that the matters be heard by the same court where both the parties have filed the cases because the petitioner-wife had never raised any grievance, with respect to continuation of the cases at Ranchi or that she was facing hardship in prosecuting the cases in the court of Family Judge, Ranchi. It is contended that the plea of hardship has been raised at such belated stage with the sole intent to linger the disposal of the cases and harass the O.P./husband.