Rajam Babu v. Babu KK

Transfer Appeal (C) NO. 3 / 2023

Before High Court of Kerala at Ernakulam

Appeal allowed on 21.06.2023

By Hon’ble Mr. Justice Anil K Narendran J & Hon’ble Mr. Justice P G Ajithkumar J

Order:

Writ appeal of wife was allowed in view of Section 21A of the Hindu Marriage Act 1955 providing transfer of connected matters to the place where the petition was firstly filed and also to avoid conflicting decision in connected matters.

Background

Appellant wife aged 69 years initially filed Transfer Petition seeking transfer of divorce petition, filed by the husband aged 72 years, at Ernakulam Family Court to the Thrissur Family Court where she had filed petition for Restitution of Conjugal Rights. Both the petitions were filed under Hindu Marriage Act 1955.

The transfer petition was dismissed by Single Judge of the Kerala High Court as no special reason was cited by the appellant except old age which happened to be the fact for the respondent husband also.

Aggrieved by the dismissal of her transfer petition appellant wife filed Writ Appeal before the Division Bench of the Kerala High Court.

Contention of the Appellant was that it would be convenient for her at Thrissur and prayed for trial of both the cases together.

Hon’ble Apex Court in the case of Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry held that ordinarily a petition for divorce and a petition for restitution of conjugal rights between the same parties shall be heard and decided together in order to avoid conflicting decisions. A joint trial of two cases is possible only if both cases are in one court.

Technical point on the point of transfer of petition:

Section 21A(2) of Hindu Marriage Act 1955

“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.”

Observation of Court

In the present matter husband filed divorce petition later and wife filed Restitution of Conjugal rights before.

Decision:

Wherefore the Hon’ble Court allowed the Writ Appeal and transfer of the Divorce petition at Family Court Thrissur.