A bench of Justice V. Ramasubramanian has held that a power to transfer the petition under Section 21A of the Hindu Marriage Act can be invoked when the subsequent petition is a petition seeking Judicial separation (under Section 10) or a petition seeking divorce (under section 13).
Facts of the case (SHRUTI KAUSHAL BISHT Versus KAUSHAL R. BISHT)
The parties got married on 19.11.2015 at Delhi and in few years, disputes arose between the parties and the parties started living separately from 12.01.2019. The husband filed a petition for divorce on 07.05.2019 before the Family Court, Pune, Maharashtra. After the receipt of notice in the said petition, the wife came up with the Transfer Petition No.1264 of 2019. The transfer petition was filed in the first week of July2019. Thereafter, the wife, perhaps as a counterblast, filed a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi on 15.07.2019. Upon receipt of notice in the said petition, the husband has come up with Transfer Petition No.2168 of 2019. The main ground on which the wife is seeking transfer of the husband’s divorce petition from Pune to New Delhi is that she has no independent source of income and that since the husband is not even paying any maintenance, she is entitled to have the divorce petition transferred to the Family Court in New Delhi, so that the 2 petition for divorce filed by the husband could be tried together with the petition for restitution of conjugal rights filed by her.
The husband opposed the transfer on the ground that the petition filed by the wife, is that his own petition for divorce was prior in point of time and that therefore under Section 21A(2)(b) of the Hindu Marriage Act, 1955, the petition filed by the wife subsequently, is liable to be transferred to Pune. The husband has offered to bear the expenses for the travel of the wife from Delhi to Pune. The husband further states that his father is suffering from seizures and asthma and that his mother has undergone a cervical biopsy recently and that therefore it is not possible for him to leave his aged parents and travel to Delhi, for conducting the proceedings.
The husband was placing heavy reliance upon Section 21A(2)(b) of the Hindu Marriage Act, 1955 in support of his contention that a petition filed later in point of time should be transferred to the Court in which a petition under the Act had been filed prior in point of time. But the bench observed that the said contention is misconceived, as can be seen from the plain language of Section 21A in entirety. While ruling in favour of the wife, the bench further stated that-
"What was filed by the husband, first in point of time, was a petition for divorce and hence his case may fit into clause (a) of Subsection (1) of section 21A.
But unfortunately for him, what was filed by the wife later in point of time was only a petition under Section 9 and not a petition either under Section10 or under Section 13 of the Hindu Marriage Act. Thus, the wife’s petition, though subsequent in point of time, does not fall under 6 Clause (b) of Subsection (1) of Section 21A. As a consequence, Subsection (1) of Section 21A has no application to the case on hand, as the preconditions stipulated therein are not satisfied. In any case Section 21A of the Hindu Marriage Act does not divest this Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908.
In Guda Vijalakshmi vs. Guda Ramchandra Sekhara Sastry , this Court rejected the contention that the substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act,1955. The words “subject to the other provisions contained in this Act” appearing in Section 21 of the Hindu Marriage Act, 1955 were construed by this Court to indicate only those provisions which are inconsistent with any of the provisions of the Act. The only test prescribed in Section 25(1) of the Code of Civil Procedure for the exercise of the power of transfer by this Court is “expediency for the ends of Justice”"
Understanding Section 21 A:
[Section 21A of the Act states- 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 subsection (2).
(2) In a case where subsection (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 subsection (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 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.”]
Sub Section (1) of Section 21A, deals with a situation where one party to a marriage has filed a petition either for judicial separation under Section 10 or for a decree of divorce under Section 13, before a District Court having jurisdiction and thereafter the other party to the marriage, files a petition either under Section 10 or under Section 13, before the same District Court or in a different District Court in the same State or in a different State. Such types of cases, covered by Subsection (1), are required to be dealt with, in the manner specified in Subsection (2). Subsection (2) of Section 21A, has no independent existence de hors Subsection (1). A combined reading of Subsections (1) and (2) would show that the procedure prescribed by Subsection (2), applies only to situations covered by Subsection (1).
Read Judgement here