Smt. Pushpa Devi Vs Dharmpal — Matrimonial and Divorce | Allahabad HC (2025)

Smt. Pushpa Devi Vs Dharmpal — Matrimonial and Divorce | Allahabad HC (2025)

What the court decided

AI extract

Outcome

None to the applicant; the transfer petition was dismissed. The Court further directed that the execution case be disposed of (being liable to rejection) and that a copy of the order be marked to the Principal Judge, Family Court, Ayodhya and communicated through the Senior Registrar.

Issue for consideration

Whether Execution Case No.7 of 2023, pending before the Principle Judge, Family Court at Ayodhya, arising out of a decree under section 9 of the Hindu Marriage Act, should be transferred to District Bahraich under Section 24 CPC. +1 more

Court's answer

Exercising inherent powers to prevent harassment and avoid abuse of process, the Court held that the execution case (printed as 'No.70 of 2023' in this paragraph; elsewhere 'No.7 of 2023') had lost its efficacy and was liable to be rejected, so that in such a dead proceeding no opportunity arose for the Court to transfer it.

Ratio / Principle

A decree passed in proceedings under section 9 of the Hindu Marriage Act cannot be put to execution.

Key takeaways

Once a decree of grant of restitution of conjugal rights is passed and remains unfulfilled for a period of one year, it gives the party in whose favour the decree under Section 9 subsists a right to seek divorce.obiter¶12
Where the proceedings themselves cannot be entertained by the Court in law, there is no question of issuing any notice or entertaining and fixing dates in such a matter.ratio¶10
In view of the co-ordinate Bench order dated 23.04.2025 transferring the respondent's section 13 Hindu Marriage Act proceedings (suit No.283 of 2024) from Ayodhya to District Bahraich, the parties were observed to be free to contest those proceedings there.

Detailed headnote1 paragraphs

Allahabad High Court (Lucknow Bench), Jaspreet Singh, J., order dated 14.5.2025 (Neutral Citation 2025:AHC-LKO:28250): Transfer Application (CIVIL) No. 280 of 2024 under Section 24 CPC by Smt. Pushpa Devi seeking transfer of Execution Case No.7 of 2023 — execution of the decree in Case No.557 of 2018, a section 9 Hindu Marriage Act (restitution of conjugal rights) decree decided on 07.01.2021 — from the Family Court at Ayodhya to District Bahraich. The Court held that a decree passed in section 9 HMA proceedings cannot be put to execution, and that where proceedings cannot in law be entertained, no notice may issue nor dates be fixed. Exercising inherent powers to prevent harassment and abuse of process, it declared the execution case (printed as 'No.70 of 2023' in para 8 of the order; elsewhere 'No.7 of 2023') bereft of efficacy and liable to rejection, leaving nothing capable of transfer, dismissed the petition, and directed disposal of the execution case, marking the order to the Principal Judge, Family Court, Ayodhya through the Senior Registrar. It noted the respondent's section 13 HMA suit No.283 of 2024 had already been transferred by a co-ordinate Bench order dated 23.04.2025 from Ayodhya to Bahraich, leaving the parties free to contest it there.

Neutral Citation No. - 2025:AHC-LKO:28250

Court No. - 8

Case :- TRANSFER APPLICATION (CIVIL) No. - 280 of 2024

Applicant :- Smt. Pushpa Devi Opposite Party :- Dharmpal Counsel for Applicant :- Nripendra Mishra Counsel for Opposite Party :- Alok Srivastava

Hon'ble Jaspreet Singh,J.

Heard Shri Nripendra Mishra, learned counsel for the petitioner and Shri Alok Srivastava, learned counsel for the respondent.

By means of the instant petition preferred under Section 24 CPC, the petitioner seeks transfer of Execution Case No.7 of 2023 pending before the Principle Judge, Family Court at Ayodhya to District Bahraich.

It is submitted that the said execution case arises out of a judgment and decree which was passed in proceedings under section 9 of the Hindu Marriage Act which was decided by the Court on 07.01.2021.

It is most strange that the Presiding Officer who is dealing with the Execution Case No.7 of 2023 even at the time of registration of the said case did not notice before registering the case that the execution was sought of the decree passed under section 9 of the Hindu Marriage Act.

This Court finds that the decree passed in Case No.557 of 2018 in proceedings under section 9 of the Hindu Marriage Act cannot be put to execution. It is most strange that the Presiding Officer did not notice this nor Munsarim submitted its report to this effect. Where the proceedings itself cannot be entertained by the Court in law, there is no question of issue any notice or entertaining and fixing date in such a matter.

Once a decree of grant of restitution of conjugal rights is passed and it remains unfulfilled for a

period of one year then it gives a right to the party in whose favour the decree under Section 9 subsists to seek divorce.

In the aforesaid context, it has been informed to this Court that the respondent has also initiated a proceedings under section 13 of the Hindu Marriage Act wherein a Co-ordinate Bench of this Court vide order dated 23.04.2025 has already transferred the said proceedings from Ayodhya to District Bahraich. In view thereof it is observed that the parties shall be free to contest the proceedings in suit No.283 of 2024.

However, neither the execution case could have been entertained nor any requirement to transfer the same. This Court exercises inherent powers to prevent any harassment, avoid any abuse of process of law for either of the parties and provide that the execution case itself No.70 of 2023 lost its efficacy and is liable to be rejected hence in such dead proceedings there does not arrive any opportunity for this Court to transfer the execution case.

Accordingly, the petition is dismissed and the execution case shall also be disposed of in light of the observations made above.

The copy of this order shall be marked to the Principal Judge, Family Court, Ayodhya for necessary compliance. The order to be communicated through the Senior Registrar of this Court.

Order Date :- 14.5.2025 ank

Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench