Judgment:
ORDER
P.C. Jain, J.
1. This is a petition for transfer of the Matrimonial Petition, 31 of 1986 of the Family Court, Jaipur, to the City Civil Court, Bombay, in its matrimonial jurisdiction.
2. Briefly stated the facts of the case are that on or about 11th Dec. 1985, a matrimonial petition was filed at Bombay in the City Civil Court in its matrimonial jurisdiction. That petition bears No. 1165 of 1985. The said petition was filed under Section 13, Hindu Marriage Act, 1955, for a decree of divorce (hereinafter referred to as Bombay petition). This petition was filed by the petitioner (wife) against her husband, non-petitioner. The non-petitioner (husband) filed a petition on or about 12th Dec. 1985, in the Family Court, Jaipur, for divorce under Section 13, Hindu Marriage Act, 1955, on the ground of desertion (bearing Matrimonial Petition No. 31 of 1986; hereinafter referred as Jaipur Petition). Both the Bombay petition and the Jaipur petition are for divorce under Section 13 of the said Act and are governed by the provisions of the Hindu Marriage Act, 1955.
3. An application under Section 21A, Hindu Marriage Act, 1955 read with Section 23, Civil P.C. has been filed by the petitioner for transferring the Jaipur petition to the city Civil Court, Bombay, in its matrimonial jurisdiction. There is no dispute between the parties that Jaipur petition was filed subsequently to the filing of the Bombay petition. Section 21A, Hindu Marriage Act, 1955, 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 a marriage praying for a decree for judicial separation under Section 10 or for 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 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, 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.'
4. Section 21A provides powers to transfer petition. In certain cases, it provides that in case a petition is presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 and, another petition is filed 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 petition shall be dealt with as provided in Sub-section (2) of Section 21A. Sub-sec. (2) further provides that in a case where Sub-section (1) applies, 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 earlier petition was presented. Sub-sec. (3) provides that in a case where Clause (b) of Sub-section (2) applies, the court that would be competent to transfer the petition will be that court which is empowered under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which later petition has been presented to the district court in which the earlier petition is pending.
5. Section 23, Civil P.C. reads as under :--
'23. To what Court application lies: (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 to Court in which the suit is brought is situate.'
6. In Bombay, City Civil Court is vestedwith the matrimonial jurisdiction and in Jaipurin the State of Rajasthan, Family Court is thecompetent court to deal with the matrimonialdisputes. For the purpose of the HinduMarriage Act, 1955, both the courts are districtcourts competent to deal with the petition under Section 13 of the said Act. The Court atBombay dealing with the matrimonial disputesis subordinate to the Bombay High Courtand, Family Court at Jaipur is subordinate tothis Court. Sub-section (3) of Section 23, Civil P.C.lays down that where the civil courts aresubordinate to different High Courts, theapplication shall be made to the High Courtwithin the local limits of whose jurisdictionthe court in which the suit is brought is situate.If Section 21A(1)(b) of the Hindu Marriage Act,1955 is read with Section 23(3) Civil P.C., it will beclear that it is the later petition that shall betransferred to the district court in which theearlier petition was presented and both thepetitions shall be heard and disposed oftogether by the district court in which theearlier petition was presented. Since theearlier petition was presented to the districtcourt at Bombay, it will be the later petition,i.e., Jaipur petition, that will have to betransferred to the District Court at Bombay,and power to transfer such petitions lies withthe High Court in view of Sub-section (3) of Section 22,Civil P.C.
7. Shri Shekhawat, learned counsel for the non-petitioner, submitted that the procedure provided for the disposal of petitions under the family Courts Act, 1984 is different. The procedure for disposal of the petition before the Family Court has been laid down in Section 10 of the Family Courts Act, 1984. Shri Shekhawat also submitted that in view of Sections 11, 12, 13, 14, 15 and 16 of the Family Courts Act, 1984, the procedure to be adopted by the Family Court is substantially different than the procedure and power exercised by the matrimonial court other than family court. The submission of Shri Shekhawat is that the wife who has filed a petition at Bombay will be in an advantageous position as her husband non-petitioner who has filed the petition in the Family Court at Jaipur will be deprived of the benefits of the special procedure laid down under the Family Courts Act, 1984. Shri Shekhawat, thus, submitted that in view of the special procedure the petition cannot be transferred from the Family Court to matrimonial court at Bombay. I do not find any substance in the contention of Shri Shekhawat as the different procedure cannot deprive the court from invoking the provisions of Section 21A read with Section 23(3), Civil P.C. The power of transfer can be exercised in the circumstances provided under Section 21A, Hindu Marriage Act, 1955, and such powers are not subject to the procedure to be adopted by the different matrimonial Courts. The power to transfer petition, in such circumstances, enumerated in Section 21A cannot be whittled down because the two matrimonial courts are required to dispose of the matter by adopting different procedures.
8. Shri Shekhawat, learned counsel for the non-petitioner, also raised a plea that the petition under Section 21A lies before a Division Bench of this Court. The submission of Shri Shekhawat is that under Section 19, Family Courts Act, 1984, an appeal is required to be heard by a bench consisting of two or more judges. He, thus, submitted that since an appeal lies to a division bench of this Court, as such an application for transfer under Section 21A, Hindu Marriage Act, 1955, also lies to a division bench of this Court.
9. Shri Manish Bhandari, learned counsel for the petitioner, submitted that Section 23(3), Civil P.C. is very clear. It provides that in case, two petitions are pending before the different courts which 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. The submission of Shri Bhandari is that two different courts, 'Appellate Court' and 'High Court' have been named in Section 23, C.P.C. for indicating to courts to which application should be made. Sub-section (2) of Section 23 provides that 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. Sub-section (2) lays down that 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 and Sub-section (3) provides that where such courts are subordinate to different High Courts, the application shall be made to the High Court. Thus, the application for transfer is not required to be made to the Appellate Court where the case is covered by Sub-section (3) of Section 23 Civil. P.C.
10. I am of the view that the submission made by Shri Bhandari, learned counsel for the petitioner, is quite correct An application to transfer petition in the contingency referred to in Section 21A, Hindu Marriage Act, 1955, lies to the High Court and not to the Appellate Court, in the facts and circumstances of the case.
11. For the reasons stated above, this petition is allowed and the petition No. 31 of 1986, Jaipur petition, pending in the Family Court at Jaipur is transferred to the City Civil Court, Bombay, exercising matrimonial jurisdiction and the learned City Civil Court, Bombay, shall hear and dispose of both the petitions together in accordance with law.
12. In the circumstances of the case, there shall be no order as to costs.
13. A copy of this order be sent to the learned Family Court, Jaipur, for doing the needful in the matter.