Delhi High Court
Vikas Harjai vs Dr. Chetna Anand on 19 March, 2015
Author: G.P.Mittal
Bench: G.P.Mittal
$-38 & 39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th March, 2015
+ TR.P. (C.) 57/2014
DR.CHETNA HARJAI
..... Petitioner
Through: Mr.Manish Garg, Advocate
with Mr. Hitesh Kumar Bagri,
Advocate
versus
VIKAS HARJAI ..... Respondent
Through: Mr. Rohit Bhardwaj, Advocate
with Mr. Narendra Kumar
Goyal, Advocate
+ TR.P.(C.) 73/2014
VIKAS HARJAI
..... Petitioner
Through: Mr. Rohit Bhardwaj, Advocate
with Mr. Narendra Kumar
Goyal, Advocate
versus
DR. CHETNA ANAND ..... Respondent
Through: Mr.Manish Garg, Advocate
with Mr. Hitesh Kumar Bagri,
Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
TR.P.(C.).57/2014 & 73/2014 Page 1 of 7
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. Two divorce petitions, one being HMA Petition no.112/2009 and the other being HMA Petition no.534/2013 are pending between the parties. The husband Vikas Harjai preferred the first divorce petition on the ground of cruelty sometime in 2009. Issues have been framed in the said petition and the matter is listed for evidence. On the other hand, HMA Petition no.534/2013 has been preferred by the wife Dr. Chetna Harjai, for divorce only and also on the ground of cruelty.
2. For the sake of convenience, Vikas Harjai shall be referred to as the husband while Dr. Chetna Harjai shall be referred to as the wife.
3. It is urged by the learned counsel for the wife that Chetna Harjai is employed as a scientist in the Department of Environment, Government of NCT of Delhi, Delhi Secretariat, near ITO. She is a resident of Shalimar Bagh. She has to take care of her aged parents and minor child aged eight years. It is therefore, TR.P.(C.).57/2014 & 73/2014 Page 2 of 7 inconvenient for her to attend the Court proceedings at Dwarka Courts. It is hence, prayed that HMA Petition no.112/2009 pending before the Principal Judge, Family Court, Dwarka may be transferred and assigned to the Court of Principal Judge, Family Court, Rohini, where the second petition preferred by the wife is pending. It is stated that a case under Protection of Women from Domestic Violence Act, 2005 is also pending in the Court of Metropolitan Magistrate, Rohini. It is urged by the learned counsel for the wife that it will be inconvenient for the child to reach Dwarka Court as he is studying in Bal Bharti School, which is also close to his residence in Shalimar Bagh.
4. The petition for transfer preferred by the wife is opposed by the husband. It is stated by the learned counsel for the husband that although the petition for divorce desired to be transferred now has been pending for about six years, the wife did not prefer to move an application for transfer of the petition to the Court at Rohini earlier, particularly when the child was even more small at that time. It is urged by the learned counsel for the husband that the presence of child is not required by the Court of TR.P.(C.).57/2014 & 73/2014 Page 3 of 7 Principal Judge, Family Court at Dwarka at all. Visitation rights as granted can be availed by the husband at any place close to the residence of the wife/child. The learned counsel for the husband also places reliance on Section 21(a) of the Hindu Marriage Act, 1955 (the Act) which lays down that if two separate petitions under Section 10 or Section 13 are filed by husband/wife, both the petitions should be tried together. If the petitions having been filed before two different Courts, then the petition filed later in time has to be transferred to the Court where the first petition is pending. The learned counsel for the husband urges that the provisions of Section 4 of the Act clearly state that the Act has an overriding effect over other laws and its provisions are mandatory.
5. I am unable to subscribe to the view that the provisions of Section 21 of the Act are mandatory. Section 21(a) deals with a normal situation when two different petitions are filed by the husband and the wife under Section 10 or Section 13 of the Act. Normally, the petition filed later in point of time if presented/pending before a different Court has to be transferred TR.P.(C.).57/2014 & 73/2014 Page 4 of 7 to the first Court but if either of the parties is able to make out a case that the first petition must be transferred to the Court where the second petition has been instituted, that will also be permissible.
6. The question for consideration however, is whether the rule laid down in Section 21(a) of the Act should be followed or there is any exceptional circumstance so as not to follow the provisions of Section 21(a) of the Act.
7. As stated earlier, the contention raised on behalf of the wife is that it will be very inconvenient for the wife to attend to the proceedings in the Court of Principal Judge, Family Court, Dwarka because of distance. Another contention is that it will be difficult and inconvenient for the child to attend the Court at Dwarka. The contentions do not hold much water. It is the admitted case of wife that she is working as a scientist in the Department of Environment, Government of NCT of Delhi which is located at Delhi Secretariat, Vikas Marg, close to ITO. Thus, it is evident that the wife has to travel daily a distance of 15km to 20km one side for her employment, whereas hearing in TR.P.(C.).57/2014 & 73/2014 Page 5 of 7 the Family Court will hardly be once or twice a month. As far as inconvenience and difficulty of the child is concerned, presence of the child is not needed before the Family Court, Dwarka at all. As stated earlier and agreed by the learned counsel for the husband, visitation rights can be availed by the husband at some neutral place which may not be very far from the residence of the child at Shalimar Bagh. Thus, I do not find any ground to deviate from the provisions of Section 21(a) of the Act.
8. Consequently, TR.P.(C.) 57/2014 titled Dr. Chetna Harjai v.
Vikas Harjai is dismissed, whereas TR.P.(C.) 73/2014 titled Vikas Harjai v. Dr. Chetna Anand is allowed.
9. HMA Petition no.534/2013 pending in the Court of Additional Principal Judge, Family Court, Rohini is transferred to the Court of Principal Judge, Family Court, Dwarka where HMA. Petition no.112/2009 is pending to be tried by him/her.
10. It is made clear that both the petitions shall be tried together either by the Principal Judge or the Additional Principal Judge TR.P.(C.).57/2014 & 73/2014 Page 6 of 7 together.
11. Both the petitions are disposed of accordingly.
12. Pending applications also stand disposed of.
13. A copy of the order be transmitted to the Courts concerned.
14. Dasti also.
(G.P. MITTAL) JUDGE MARCH 19, 2015 pst TR.P.(C.).57/2014 & 73/2014 Page 7 of 7