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MCA/870/2008 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR TRANSFER No. 870 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
SONALBEN
MOHABATSINH RAJPUT - Applicant(s)
Versus
DILIPBHAI
SHIVAJI VAGHELA - Opponent(s)
=====================================================
Appearance :
MR
RC JANI for Applicant(s) : 1,
MR PRATIK B BAROT for Opponent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 31/07/2008
ORAL
JUDGMENT
1. Present
application is submitted by the applicant wife under Section 24 of
the Code of Civil Procedure for an appropriate order to transfer the
proceedings i.e H.M.P No 50 of 2007 from the Court of learned
Principal Senior Civil Judge, Patan to the Court of learned Principal
Senior Civil Judge, Mehsana, where the petition filed by the present
applicant i.e. H.M.P. No. 2 of 2008 is pending.
2. Applicant
herein wife had instituted one H.M.P. No. 2 of 2008 before the
learned Principal Senior Civil Judge. Mehsana against the respondent
husband, under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights. That the respondent husband has also filed one
H.M.P. No. 50 of 2007 before the learned Principal Senior Civil
Judge, Patan against the applicant wife under Section 13 of the Hindu
Marriage Act for divorce.
3. It
is submitted that the applicant is a lady and she is residing at her
parental house with her parents and has no independent income to meet
with the traveling and other expenses on attending the Court at Patan
on every date of adjournments. It is submitted that it will be very
difficult for the applicant to move the Patan at every adjournments
of the said petition. It is further submitted that and even
otherwise, considering the fact that application submitted by the
applicant for restitution of conjugal rights under Section 9 of the
Hindu Marriage Act is pending in the Court at Mehsana, it will be in
the fitness of things that both the proceedings are heard by one
Court at Mehsana to avoid any duplication of the evidence etc. Shri
Jani, learned advocate for the applicant has heavily relied upon the
decision of the Hon’ble Supreme Court in the case of Sumitra Singh
Vs. Kumar Sanjay reported in AIR 2002 SC 396, in support
of his contention. As observed by the Hon’ble Supreme Court in a
matrimonial dispute while considering Section 24 of the Code of Civil
Procedure normally the convenience of the wife is required to be
considered. Therefore, it is requested to allow the present
application and to transfer the proceedings pending in the Court of
Patan to Court at Mehsana and to hear both the proceedings together
by one Court.
4. Application
is opposed by Shri Pratik Barot, learned advocate for the
respondent-husband. It is submitted by Shri Barot, learned advocate
for the respondent that merely because, the applicant is lady and has
no independent income is no ground to transfer the proceedings from
Patan Court to Mehsana Court. It is submitted that even the husband
is required to go and defend the case at Mehsana. Shri Barot, learned
advocate for the respondent-husband has relied upon the following
decisions of the Hon’ble Supreme Court, in support of his submissions
and prayer to dismiss the present application.
1. (2004)
13 SCC, 634, Kamudi Aurora Vs. Surinder Pal Singh Aurora.
2. (2005)
11 SCC, 535, Preeti
Sharma Vs. Manjit Sharma.
3. (2005)
11 SCC, 446, Gargi
Konar Vs. Jagjeet Singh
4. (2006)
9 SCC, 197, Anindita
Das Vs. Srijit Das.
5. Heard
the learned advocate for the respective parties and considered the
decisions relied upon by the learned advocate for the respective
parties referred to herein above. On considering the various
decisions relied upon by the learned advocate for the
respondent-husband referred to herein above, it cannot be said that
the Hon’ble Supreme Court has laid down absolute proposition of law
as sought to be canvased on behalf of the respondent-husband that on
the aforesaid ground there cannot be transfer of proceedings.
Ultimately it depends upon the facts of each case. In the case of
Sumitra Singh (supra), the Hon’ble Supreme Court has specifically
laid down that in matrimonial matter while considering Section 24 of
the Code of Civil Procedure convenience of the wife is required to be
considered. Even otherwise, considering the fact that there are two
proceedings pending in different Courts one initiated by the wife and
another initiated by the husband, one is for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act and another for
divorce under Section 13 of the Hindu Marriage Act and even to avoid
multiplicity of proceedings and to avoid multiplicity of leading
evidence, it will be in the fitness of things that both the
proceedings are heard together by one Court and the same will not
only save the time of the litigant as well as the Court but the same
may avoid conflicting order. It may happen that the Court at Mehsana
in which the application for restitution of conjugal rights at the
instance of the wife is pending, may pass a decree for restitution of
conjugal rights and on the other the Court at Patan before whom the
proceedings are pending at the instance of the husband for divorce
under Section 13 of the Hindu Marriage Act may pass decree of divorce
and, therefore, there will be two conflicting orders /judgment and
decree by two different Courts between the same parties and
therefore, to avoid such a situation eventuality, this Court is of
the opinion that it will be in the fitness of things that both the
proceedings may be heard together by one Court and, therefore, also
the proceedings pending in the Court at Patan are required to be
transferred at Mehsana and both are required to be heard together by
one Court.
6. Under
the circumstances and for the reasons stated above, the application
succeeds and it is ordered that H.M.P No. 50 of 2007 pending in the
Court of learned Civil Judge, Patan be transferred to the Court of
learned Principal Senior Civil Judge, Mehsana and the same is heard
along with H.M.P. No. 2 of 2008 pending in the Court of learned
Principal Senior Civil Judge, Mehsana and both are heard and decided
together by one Court. Rule is made absolute, There shall be no order
as to costs.
(M.R.SHAH.
J.)
kaushik
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