Brijesh Kumar Gupta vs Smt. Poonam Gupta

Allahabad High Court
Brijesh Kumar Gupta vs Smt. Poonam Gupta on
17/7/2002

JUDGMENT

A.K. Yog, J.

1. Brijesh Kumar Gupta; applicant before this Court, has filed the
  present Transfer Application under Sections 23(3) and 24 of the Code of
  Civil Procedure read with Section 21A(b) of Hindu Marriage Act, praying
  for transferring Divorce Petition No. 367 of 2001, Smt. Poonam Gupta v.
  Brijesh Gupta, under Sections 13 and 27, Hindu Marriage Act pending in
  the Court of Principal Judge, Family Court, Meerut to the Court of
  VIIth Additional District Judge, Gwalior, where Matrimonial Petition
  No. 2A of 2000, Brijesh Kumar Gupta v. Smt Poonam Gupta, under Section
  12. Hindu Marriage Act (to declare the marriage between the parties as
  void) is said to be already pending since before the filing of the
  aforementioned divorce petition by the wife at Meerut.

2. In para 10 of the affidavit, filed in support of the transfer
  application, the applicant, Brijesh Kumar Gupta has admitted that he
  had received notice of the said Matrimonial Divorce Petition No. 367 of
  2001 (Annexure-2 to the affidavit) to appear in the case on July 30,
  2001 when an attempt for reconciliation was made before the Family
  Court, Meerut. He also admitted that Family Court, Meerut, fixed
  5.7.2002 vide its order dated 14.5.2002 and that the said Court has
  rejected his application for stay of the proceedings not finding favour
  with the prayer made by the said applicant (the husband) vide
  application (paper No. 18Ga) for transferring the matrimonial divorce
  petition at Meerut to Gwalior.

3. From the facts as stated in the affidavit in support of the transfer
  application, it is evident that husband-applicant has already submitted
  to the transfer of the Family Court, Meerut. by joining proceedings.

4. Heard learned counsel for the husband-applicant, Sri Vijay Prakash,
  Advocate at length and perused the record.

5. The learned counsel for the husband-applicant contends that the
  court below (Family Court, Meerut) has committed illegality in
  rejecting application filed by the husband applicant for transferring
  Divorce Petition No. 367 of 2001 to the Court at Gwalior where
  Matrimony Petition No. 2A of 2000 (Annexure-1 to the affidavit), filed
  earlier in point of time, is already pending.

6. Copy of the application (Paper No. 18Ga) dated 14.5.2002 has been
  filed as Annexure-4 to the affidavit wherein the prayer is to the
  effect that proceedings of Matrimonial Petition No. 367 of 2001, Smt.
  Poonam Gupta D. Brijesh Kumar Gupta, be stayed and transferred to the
  Court of VIIth Additional District Judge, Gwalior, so that both the
  cases may be heard together.

7. By means of the order dated 31.5.2002, the Family Court, Meerut, has
  held, while rejecting the said application (18Ga), that the said Court
  was not competent to transfer the case as prayed and it was open for
  the said husband (opposite party in the Meerut case) to seek desired
  relief by approaching the Hon’ble High Court, Allahabad/Hon’ble Supreme
  Court for the desired relief.

8. The learned counsel for the husband-applicant, in support of his
  prayer in the transfer application, referred to the provision of
  Section 21A Hindu Marriage Act, 1955 (as amended up to date) called the
  Act.

Section 21A of the Act is being reproduced :

“21A. (1) Where :

(a) a petition under this Act has been presented to a District Court
  having jurisdiction by a party to a marriage praying for a decree
  for judicial separation under Section 10 or a decree of divorce
  under Section 13 ; and

(b) another petition under this Act has been presented thereafter by
  the other party to the marriage praying for a decree for judicial
  separation under Section 10 or for a decree of divorce under Section
  13 on any ground, whether in the same District Court or in a
  different District Court, in the same State or in a different State,
  the petitions shall be dealt with as specified in Sub-section (2).

(2) in a case where Subsection (1) applies :

(a) if the petitions are presented to the same District Court, both
  the petitions shall be tried and heard together by that District
  Court ;

(b) 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 earlier petition was presented.

(3) in a case where Clause (b) of Sub-section (2) applies, the Court
  or the Government as the case may be, competent under the Code of
  Civil Procedure, 1908 (5 of 1908), to transfer any suit or
  proceeding from the District Court in which the later petition has
  been presented to the District Court in which the earlier petition
  is pending, shall exercise its powers to transfer such later
  petition as if it had been empowered so to do under the said Code.”

9. Learned counsel for the applicant submits that since a petition (for
  declaring marriage between parties void) has been presented prior in
  time at Gwalior under Section 12, Hindu Marriage Act, the subsequent
  Matrimonial Divorce petition at Meerut filed by the wife could not
  proceed and it was incumbent upon the Meerut Court to stay proceedings
  before it and transfer the said petition to Gwalior. In support of the
  above argument, he has referred to the expression ‘where in the same
  State or in a different State’. According to the learned counsel for
  the applicant, Section 21A of the Act provides where conditions
  contemplated under Subsection (1) Clauses (a) and (b) are fulfilled and
  in that situation, according to him, the petitions have to be dealt
  with as specified in Sub-section (2) and since all the conditions
  contained under Section 21A(1) Clauses (a) and (b) of the Act are
  specified in the present case, the court below had no choice/option but
  to resort to Sub-section (2) of Section 21A of the Act. Referring to
  Sub-section (2) he referred to Clause (b) and Sub-section (3) of
  Section 21A of the Act, it is argued that under Sub-section (3) of
  Section 21A, Meerut Court should have transferred the case before it to
  the Gwalior Court.

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10. Learned counsel for the husband-applicant, further referred to
  Sections 22 and 23, Code of Civil Procedure which are reproduced :

“22. Where a suit may be instituted in any one of two or more Courts
  and is instituted in one of such Courts, any defendant, after notice
  to the other parties, may, at the earliest possible opportunity and
  in all cases where issues are settled at or before such settlement,
  apply to have the suit transferred to another Court, and the Court
  to which such application is made, after considering the objections
  of the other parties (if any), shall determine in which of the
  several Courts having jurisdiction the suit shall proceed.”

“23. (1) Where the several Courts having jurisdiction are
  subordinate to the same appellate court, an application under
  Section 22 shall be made to the appellate court.

(2) Where such Courts are subordinate to different appellate courts
  but to the same High Court, the application shall be made to the
  said High Court.

(3) Where such Courts are subordinate to different High Courts, the
  application shall be made to the High Court within the local limits
  of whose jurisdiction the Court in which the suit is brought is
  situate.

11. A bare reading of Sections 22 and 23, Code of Civil Procedure, go
  to show that these provisions deal with an entirely different
  contingency. Section 23 is complementary provision to Section 22, Code
  of Civil Procedure, as is evident from the reading of Sub-section (1)
  of Section 23. Further Sections 22 and 23, Code of Civil Procedure,
  come into play only in a situation when a suit may be instituted in any
  one of two or more Courts and is instituted in one of such Courts, then
  Section 22 confers a right upon any defendant to file an application
  (in the Court specified under Section 23 Code of Civil Procedure) to
  have the suit transferred to some such another Court, subject to
  fulfilment of other conditions contained under Section 22 i.e., said
  application is being filed at the earliest possible opportunity and in
  all cases where issues are settled at or before such settlement. If
  such an application is being filed by the defendant, the Court may,
  after considering the objections of the other parties, if any, shall
  determine in which of the several Courts having jurisdiction, the suit
  shall proceed; if at all be transferred from that Court to another
  Court (considering the attending circumstances of a particular case).

12. Sub-section (3) of Section 23, Code of Civil Procedure contemplates
  that where two or more Courts where, suit could be instituted, are
  subordinate to different High Courts, the application shall be made to
  the High Court within the local limits of whose jurisdiction the Court
  in which the suit is brought is situate.

13. Thus, it will be seen that Sections 22 and 23, Code of Civil
  Procedure deals with a situation where a suit can be filed in two or
  more Courts but it has been instituted in any one or more Courts, then
  on the objection of defendant, it can be directed to proceed in another
  such Court. These provisions do not at all deal with a situation where
  two different suits have been instituted, in the Courts, which are
  subordinate to different High Courts. In fact, where two suits are
  instituted which are within the territorial jurisdiction of two
  different High Courts, the relevant provisions, which shall come in
  play, are Sections 24 and 25 of the Code of Civil Procedure which are
  also reproduced for convenience :

“(1) On the application of any of the parties and after notice to
  the parties and after hearing such of them as desired to be heard,
  or of its own motion without such notice, the High Court or the
  District Court may, at any stage :

(a) transfer any suit, appeal or other proceeding pending before it
  for trial or disposal to any Court subordinate to it and competent
  to try or dispose of the same ; or

(b) withdraw any suit, appeal or other proceeding pending in any
  Court subordinate to it ; and :

(i) try or dispose of the same ; or

(ii) transfer the same for trial or disposal to any Court
  subordinate to it and competent to try or dispose of the same ; or

(iii) re-transfer the same for trial or disposal to the Court from
  which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn
  under Sub-section (1), the Court which (is thereafter to try or
  dispose of such suit or proceeding) may, subject to any special
  directions in the case of an order of transfer, either retry it or
  proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section :

(a) Courts of Additional and Assistant Judges shall be deemed to be
  subordinate to the District Court;

(b) “proceeding” includes a proceeding for the execution of a decree
  or order.

(4) The Court trying any suit transferred under this section from a
  Court which has no Jurisdiction to try it.

25. (1) On the application of a party, and after notice to the
  parties, and after hearing such of them as desire to be heard, the
  Supreme Court may, at any stage, if satisfied that an order under
  this section is expedient for the ends of justice, direct that any
  suit, appeal or other proceeding be transferred from a High Court or
  other Civil Court in one State to a High Court or other Civil Court
  in any other State.

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(2) Every application under this section shall be made by a motion
  which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is
  transferred shall, subject to any special directions in the order of
  transfer, either retry it or proceed from the stage at which it was
  transferred to it.

(4) in dismissing any application under this section, the Supreme
  Court may, if it is of opinion that the application was frivolous or
  vexatious, order the applicant to pay by way of compensation to any
  person who has opposed the application such sum, not exceeding two
  thousand rupees as it considers appropriate in the circumstances of
  the case.

(5) The law applicable to any suit, appeal or other proceeding
  transferred under this section shall be the law which the Court in
  which the suit, appeal or other proceeding was originally instituted
  ought to have applied to such suit, appeal or proceeding.”

14. It is, therefore, clear that in a situation where two suits have
  been instituted before different Courts within the territorial
  jurisdiction of two different High Courts, the relevant provision for
  seeking transfer is Section 25, Code of Civil Procedure.

15. The aforesaid conclusion is clearly borne out from the bare reading
  of Sub-section (1) of Section 25, Code of Civil Procedure.

16. Coming to the submission of the learned counsel for the
  husband-applicant that Hindu Marriage Act contains special provision
  and confers power to transfer petition in certain cases–including a
  case in a situation existing in the present case. Section 21A of the
  Act, it will suffice to mention that submission is itself bereft of
  merit as it has been made ignoring the provisions of Sub-section (3) of
  Section 21A of the Act.

17. Sub-section (3) of the Section 21A of the Act provides that in a
  case where Clause (b) of Sub-section (2) applies, the Court or the
  Government, as the case may be, competent under Code of Civil
  Procedure, 1908, can entertain an application to transfer any suit or
  proceeding from the District Court in which later petition has been
  presented to the District Court in which earlier petition is pqnding.

18. No provision of the clause under Section 21A of the Act confers
  jurisdiction upon a District Court or upon the High Court to which such
  district Court is subordinate, to transfer a petition to another
  District Court which is pending in the territorial jurisdiction of that
  State.

19. Submission of the learned counsel for the husband-applicant is
  completely devoid of merit as is evident from the reading of
  aforequoted Sections of the Act and the Code of Civil Procedure.

20. Learned counsel for the husband applicant has placed reliance upon
  the case of Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry, 1981
  AWC 345 : AIR 1981 SC 1143 :

“I have carefully gone through the aforementioned decision.

In para 3 of the said decision their lordships of the Apex Court
  noted : “…..In the first place it is difficult to accept the
  contention that the substantive provision contained in Section 25,
  C.P.C. is excluded by reason of Section 21 of Hindu Marriage Act,
  1955….. In terms Section 21 does not make any distinction between
  procedural and substantive provisions of C.P.C. and all that it
  provides is that the Code as far as may be shall apply to all the
  proceedings under the Act…..”

In para 4 their Lordships observed : “So far as Section 21A of Hindu
  Marriage Act is concerned since the marginal note of that section
  itself makes it clear that it deals with power to transfer petitions
  and direct their Joint or consolidated trial “in certain cases” and
  is not exhaustive….. This provision in terms deals with the power
  of the Government or the Court on whom powers of transfer have been
  conferred by the C.P.C. as it then stood, that is to say, old
  Sections 24 and 25, C.P.C. It does not deal with the present Section
  25 which has been substituted by an amendment which has come into
  force with effect from February 1, 1977 (Section 11 of the Amendment
  Act 104 of 1976). By the amendment very wide and plenary power has
  been conferred on this Court for the first time to transfer any
  suit, appeal or other proceedings from one High Court to another
  High Court or from one Civil Court in one State to another Civil
  Court in any other State. Such wide and plenary power on this Court
  could not have been in the contemplation of Parliament at the time
  enactment of Section 21A of the Hindu Marriage Act, 1955. It is,
  therefore, difficult to accept the contention that Section 21A of
  Hindu Marriage Act excludes the power of transfer conferred upon
  this Court by the present Section 25 of C.P.C. in relation to
  proceedings under that Act.”

Again in para 5 Apex Court held :

“Such a view, in our opinion, is not correct. As stated earlier, in
  the matter of transfer of petitions for a consolidated hearing
  thereof Section 21A cannot be regarded as exhaustive for the
  marginal note clearly suggests that the Section deals with power to
  transfer petitions and direct their joint and consolidated trial “in
  certain cases”. Moreover, it will invariably be expedient to have a
  joint or consolidated hearing or trial by one and the same Court of
  a husband’s petition for restitution of conjugal rights on the
  ground that the wife has withdrawn from his society without
  reasonable excuse under Section 9 of the Act and the wife’s petition
  for judicial separation against her husband on ground of cruelty
  under Section 10 of the Act in order to avoid conflicting decisions
  being rendered by two different Courts. In such a situation resort
  will have to be had to the powers under Sections 23 to25 of the
  Civil Procedure Code for directing transfer of the petitions for a
  consolidated hearing. Reading Section 21A in the manner done by the
  Nagpur Bench which leads to anomalous results has to be avoided.”

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Hon’ble Amrendra Nath Singh concurring with the view expressed by
  Hon’ble V.D. Tulzapurkar in paras 3, 4 and 5 reproduced above in paras
  8 and 9 of the judgment, noted as follows :

“In my opinion, this argument of the learned counsel for the
  respondent husband is without any substance. I have earlier set out
  Section 25 of the Code of Civil Procedure and I have pointed out
  that an analysis of the Section makes it abundantly clear that for
  the ends of Justice, wide power and Jurisdiction have been conferred
  on this Court in the matters of transfer of any suit, appeal or
  proceeding from any High Court or other Civil Court in one State to
  a High Court or other Civil Court in any other State. A suit or a
  proceeding for divorce under the Hindu Marriage Act in a Civil Court
  is necessarily a suit or proceeding and must on a plain reading of
  Section 25(1) of the Code of Civil Procedure be held to come under
  Section 25(1) of the Code, as the said section speaks of any suit,
  appeal or other proceeding. This Court must necessarily enjoy the
  power and Jurisdiction under the said provisions of transferring
  such a suit or proceeding for the ends of justice, unless the power
  and jurisdiction of this Court are specifically taken away by any
  statute. If the jurisdiction clearly conferred on any Court has to
  be ousted, the exclusion of such jurisdiction must be made in clear
  and unequivocal terms. Section 21 of the Hindu Marriage Act does not
  deal with the question of jurisdiction of any Court. As no procedure
  with regard to the proceedings under the Hindu Marriage Act has been
  laid down in the said Act, Section 21 of the Act only provides that
  ‘all proceedings under this Act shall be regulated as far as may be
  by the Code of Civil Procedure’.

Section 21 of the Hindu Marriage Act cannot be construed to exclude
  the jurisdiction conferred on this Court under Section 25 of the
  Code of Civil Procedure. It does not become necessary in the instant
  case to decide whether the provision in relation to jurisdiction of
  this Court contained in Section 25 of the Code of Civil Procedure is
  one of substantive law or it belongs to the domain of procedure.
  Even if I accept the argument of the learned counsel for the
  respondent that Section 25 does not form any part of the procedural
  law and is a part of the substantive law, I am of the opinion that
  jurisdiction conferred on this Court by Section 25 of the Code of
  Civil Procedure, is not. In any way, affected by Section 21 of the
  Hindu Marriage Act which, as I have already noted, only provides
  that ‘all proceedings under the Hindu Marriage Act shall be
  regulated as far as may be by the Code of Civil Procedure, 1908’.

9. Section 21A of the Hindu Marriage Act, in my opinion, has indeed
  no bearing on the question of Jurisdiction conferred on this Court
  under Section 25 of the Code of Civil Procedure. Section 21A of the
  Hindu Marriage Act makes provisions for transfer of petitions
  specified in the said section and for hearing and disposal of such
  petitions together by the District Court in which the earlier
  petition has been presented. Such power has been conferred on the
  Court or the Government. Section 21A has no application to the case
  of transfer of any suit or proceeding from one State to another. As
  I have earlier noted, very wide power and jurisdiction have been
  conferred on this Court in the interest of justice for transferring
  any appeal, suit or proceeding from one State to another under
  Section 25 of the Code of Civil Procedure. In the instant case, the
  petitioner has applied for transfer of the suit pending in the
  district at Eluru in the State of Andhra Pradesh to the appropriate
  Court at Udaipur in the State of Rajasthan. I am, therefore, of the
  opinion that this Court enjoys the power and jurisdiction to
  entertain this application under Section 25 of the Code of Civil
  Procedure and Sections 21 and 21A of the Hindu Marriage Act do not,
  in any way, exclude affect or curtail the power conferred on this
  Court under Section 25 of the Code of Civil Procedure. I may
  incidentally add that the present Section 25 in the Code of Civil
  Procedure came into force after Sections 21 and 21A have been
  incorporated in the Hindu Marriage Act, 1955.”

(Emphasis laid down by me)

The aforesaid decision in the case of G. Vijayalakshmi (supra), negatives the contention of the learned counsel for the husband-applicant before this Court.

21. In view of the above, the present transfer application seeking transfer of the case from Meerut (State of U. P.) to Gwalior (State of M. P.) is not cognizable by this Court.

22. Transfer application is, accordingly, rejected in limine as not cognizable.

23. No order as to costs.

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