Smt. Majula Modi vs Yogendra Kumar Modi

S.B. Sakrikar, J.—The applicant has filed this application u/s 24 of the C.P.C. for transfer of M.J.C. No. 7/93 (Smt. Manjula Modi v. Yogendra Kumar Modi) arising out of M.J.C. No. 15 /92 (Yogendra v. Manjula) decided on 2.4.1993 and also for the transfer of the Civil Suit No. 21-A/92 from the Court of Second Additional Distt. Judge, Khargone to the Competent Court of Additional Distt. Judge at Bhopal.

The undisputed facts of the case are that applicant and the non-applicant are husband and wife and out of the married life one son Vishwas was born to them who is minor and living with the applicantat Bhopal. Due to the differences between the parties the applicant and the non-applicant started living separately. On 17.11.1992 a petition for divorce u/s 13 of the Hindu Marriage Act was filed by the applicant in the Court of IIIrd Additional Distt. Judge, Bhopal. The said case was registered as Civil Suit No. 224-A/92 and ex-parte decree of divorce was passed on 24.4.1993 and an application filed by the non-applicant for setting aside the ex-parte decree is pending for disposal before the Additional Distt. Judge, Bhopal.

After the institution of the aforesaid divorce case the non-applicant filed an application against the applicant u/s 25 of the Guardian and Wards Act read with Section 6 of the Hindu Minority and Guardianship Actin the Court of IInd Additional Distt. Judge, Khargone for obtaining the custody of the minor son Vishwas living with the applicant. The said case was registered as M.J.C. No. 15/ 92. An ex-parte order was passed against the applicant in the aforesaid case and the applicant had filed an application for setting aside the ex-parte order before the IInd Addl. Distt. Judge, Khargone registered as M.J.C. No. 7/93 which is pending for disposal. The non-applicant also filed an application u/s 13 of the Hindu Marriage Act against the applicant for grant of divorce. The case is registered as Civil Case No. 21-A/92 and is also pending for disposal in the Court of IInd Additional Distt. Judge, Khargone.

The applicant by the present application prayed for transfer of the aforesaid Misc. Cases and the Civil Case No. 21-A/92pendingintheCourt of IInd Additional Distt. Judge, Khargone to the Competent Court of Additional Distt. Judge at Bhopal. It is stated in the application that minor son Vishwas is residing alongwith the applicant at Bhopal and as his ordinary place of residence is at Bhopal the M.J.C. filed for obtaining custody of the minor is required to be transferred to the Competent Court at Bhopal. With regard to the Civil Case No. 21-A/92 filed by the non-applicant for grant of divorce is also required to be transferred to the Court of Additional Distt. Judge at Bhopal where the previously instituted suit filed by the applicant for a similar relief is pending for disposal.

The non-applicant filed the reply and opposed the application. Both the parties filed copies of the relevant documents in support of their contentions.

I have considered the rival submissions of the parties and also perused the record.

On perusal it is not disputed that the previously instituted Civil Suit No. 224-A/92 filed by the applicant for grant of decree of divorce against the non- applicant u/s 13 of the Hindu Marriage Act is pending in the Court at Bhopal. Subsequent to the aforesaid case the non-applicant filed Civil Suit No. 21-A/92 for grant of similar relief against the applicant in the Court of IInd Addl. Distt. Judge, Khargone. As the previously instituted suit for grant of decree for divorce u/s 13 of the Hindu Marriage Act is pending in the Court of Additional Distt. Judge at Bhopal the subsequently instituted Civil Suit No. 21-A/ 92 pending before the Additional Distt. Judge, Khargone is required to be trans- ferred to the competent Court at Bhopal in view of the provisions of Section 21A(2)(b) of the Hindu Marriage Act, 1955.

So far as the transfer of the Misc. Judicial Cases filed for the custody of the minor child Vishwas from the Court of Additional Distt. Judge at Khargone to the Competent Court at Bhopal is concerned, it appears that minor Vishwas is residing with his mother (applicant) at Bhopal and his ordinary place of residence is also at Bhopal. Looking to the convenience of the applicant and the minor son Vishwas for the ends of justice I consider it proper to transfer the M.J.C. No. 7/93 alongwith M.J.C. No. 15/92 pending in the Court of IInd Additional Distt. Judge, Khargone to the Competent Court of Additional Distt. Judge at Bhopal.

In view of the facts and the circumstances of the case, convenience of the applicant and minor and also the law applicable to the instant case, I allow the application filed by the applicant u/s 24 of the CPC and order transfer of the M.J.C. No. 7/93, Smt. Manjula Modi v. Yogendra Kumar, alongwith original M J.C. No. 15/92, Yogendra v. Manjula, and Civil Suit No. 21-A/92 from the Court of IInd Additional Distt. Judge, Khargone to the Court of Distt. Judge, Bhopal for disposal of the said cases in accordance with law. The records of the aforesaid cases be immediately transmitted to the Court of Distt. Judge, Bhopal with the direction to the parties for appearing before the said Court for a date to be fixed in this behalf. No order as to the costs of this application.