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Judgment
D.K. Trivedi, J.—Leave to amend granted.
Petitioner husband has filed this application u/s 24 of the CPC and prayed for transfer of the petition being Marriage Petition No. 136 of 1995 filed by respondent wife for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, before the Civil Judge Senior Division, Satara to be transferred to the Court of Civil Judge, Senior Division, at Alibag and the same be heard with Hindu Marriage Petition No. 17 of 1995 filed by the petitioner on several grounds.
At reflected from the petition that the marriage of the petitioner with the opponent had taken place on 27th April, 1994 and as relation between them were strained, petitioner husband has instituted a proceeding by filing petition under the Hindu Marriage Act, before the learned Civil Judge, Senior Division, Alibag, District Raigad and prayed for decree of divorce on the ground of cruelty. The said petition was filed by the husband in the said Court on 19th June, 1995 and the petition was numbered as Hindu Marriage Petition No. 17 of 1995, It is also transpired from the documents attached to this petition that the respondent wife has filed petition being Hindu Marriage Petition No. 136 of 1996 in the Court of learned Civil Judge, S.D. Satara, wherein she has prayed for restitution of conjugal rights and in the alternate she has prayed for divorce. The said petition was filed by her in the said Court on 8th August, 1995. The respondent wife has submitted written statement in the petition filed by husband on 25th March, 1996. On behalf of the petitioner husband, written statement is filed in marriage petition No. 136 of 1995 as well as application Exhibit 5 in the said petition. Written statement was filed on 15th April, 1996.
It is one of the ground for transfer of the proceeding that it will be difficult for the husband to attend proceeding at Satara as due to threats received from brother of opponent wife. Mr. Paranjape, learned Counsel for the petitioner has also placed reliance upon Section 21(a) of the Hindu Marriage Act, and submitted that in view of the above, the proceeding initiated by the petitioner husband is first in point of time and the respondent wife has instituted the petition later on. Section 21(a) of the Hindu Marriage Act, reads as under :
"21-A. Power to transfer petitions in certain cases-(1) Where-
(a) a petition under this Act has been presented to a District Court having jurisdiction by a party to marriage praying for decree for a judicial separation u/s 10 or for a decree of divorce u/s 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 u/s 10 or for a decree of divorce u/s 13 on any ground, whether in the same District Court or in a different District Court in the same State or a different State, the petitions shall be dealt with as specified in Sub-section (2).
(2) In a case where Sub-section (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 District Spurt in which the latter petition has been presented to the District Court in which the earlier petition is pending, shall exercise its powers to transfer such latter petition as if it had been empowered so to do under the said Code."
Mr. Gaikwad, learned Counsel for the respondent took me through the affidavit filed by the opponent and submitted that no ground is made out by the applicant for the transfer of the case filed by the respondent in the Court of learned Civil Judge, S.D. Satara being Marriage Petition No. 136 of 1995 and further same is to be heard and tagged with Hindu Marriage Petition No. 17 of 1995 filed by applicant pending before the learned Civil Judge, S.D. Alibag. He also took me through the affidavit of the respondent dated 8.11.1996 and submitted that if the matter is transferred as prayed for by the applicant in the Court of learned Civil Judge, Senior Division, Alibag, it will be difficult for the respondent to attend the said Court without escort. It is also transpired from the affidavit of the respondent that if the proceeding is transferred to Alibag, she is also required to attend the said Court in advance and also even she is required to stay more if the matter is not over during the Court hours. For attending such proceeding she has prayed for advance of Rs. 1,000/-per day to meet with the expenses of her escort as well as for the fees for her Lawyers as she is without any source of income.
On examining the submissions of the respective Counsel for the parties, it is an admitted position that the petitioner husband has filed Hindu Marriage Petition seeking decree for divorce on the ground of cruelty by filing petition in the Court of learned Civil Judge, S.D. Alibag, District Raigad on 19th June, 1995 and it is thereafter the respondent wife has filed the petition for restitution of conjugal rights and in the alternative for divorce in the Court of learned Civil Judge, S.D. Satara on 8th August, 1995. On considering the provisions of Section 21(a) of the Hindu Marriage Act, the petitioner husband has in first point of time moved the Court of learned Civil Judge, S.D. Alibag, District Raigad on 19th June, 1995 and accordingly the petitioner has made out a case for transfer of the case of respondent wife being Marriage Petition No. 136 of 1995 pending in the Court of learned Civil Judge, S.D. Satara to the Court of learned Civil Judge, S.D. Alibag, District Raigad and the learned Civil Judge, S.D. Satara is directed to transmit the record and proceedings of the Marriage Petition No. 136 of 1995 to the Court of Civil Judge, S.D. Alibag and the learned Civil Judge S.D. Alibag is directed to hear both the petitions namely Hindu Marriage Petition No. 17 of 1995 and Hindu Marriage Petition No. 136 of 1995 together.
As can be seen from the affidavit of the opponent-wife wherein she highlighted about her financial position and as she has no source of income, she is required to incur the expenses of engaging lawyer as well as to attend the Court at Alibag by taking help of others. Considering her financial position, it will be in the fitness of thing that the petitioner-husband be directed to deposit at the initial stage an amount of Rs. 5,000/- in the Court of learned Civil Judge, S.D. Alibag so as to enable the respondent-wife to attend the said proceedings. Accordingly the petitioner-husband is granted time to deposit Rs. 5,000/- upto 13th January, 1997 and it will be open for the respondent-wife to withdraw the said amount unconditionally. The learned Civil Judge, S.D. Alibag is directed to dispose of the petitions as expeditiously as possible and to see that the same are disposed of by the end of June, 1997. The learned Counsel appearing on behalf of the parties, have assured this Court that the respective clients will cooperate in the proceedings before the Trial Court. It will be open for the opponent wife to move the Trial Court for seeking order or direction to get travelling expenses etc. if the matter is delayed at the instance of the petitioner-husband.
Rule is made absolute accordingly.
However, there will be no order as to costs.
Office to issue writ accordingly.