When Can Power To Transfer Petitions U/s 21A Hindu Marriage Act Be Invoked? SC Explains [Read Judgment]

The Supreme Court has held that a power to transfer the petition under Section 21A of the Hindu Marriage Act can be invoked only when the subsequent petition is either a petition seeking judicial separation (under Section 10) or a petition seeking divorce (under Section 13).

Justice V. Ramasubramanian also held that the Section 21­A of the Hindu Marriage Act does not divest the Supreme Court of the power available under Section 25(1) of the Code of Civil Procedure.

In this case, the husband filed a divorce petition before Pune Family Court. Later, the wife filed a petition for restitution of conjugal rights before Family Court, New Delhi. Both approached the Apex Court seeking transfer of cases against each other. Before the court, the wife sought transfer of the husband's divorce petition from Pune to New Delhi on the ground that she has no independent source of income and that the husband is not even paying any maintenance. On the other hand, the husband contended 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.

Section 21A HMA

Section 21A reads as follows: 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). 

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.

Sub-Section 3 provides that 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 (2) of Section 21­A, has no independent existence de hors Sub-­section (1)

The court observed that 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. It said:

"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)...In the case on hand, 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 Section 10 or under Section 13 of the Hindu Marriage Act. Thus, the wife's petition, though subsequent in point of time, does not fall under 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."

The court also said that the Section 21­A of the Hindu Marriage Act does not divest the Supreme Court of the power available under Section 25(1) CPC.

"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"."

Allowing the transfer plea of the wife, the bench rejected the offer made by the husband to meet the travel expenses for the wife. When the contention that the wife is unemployed and her claim that no maintenance is paid, are not seriously disputed, the offer now made by the husband does not convince me, the judge said.

CASE: SHRUTI KAUSHAL BISHT vs. KAUSHAL R. BISHT [TRANSFER PETITION (CIVIL) No.1264 OF 2019]

CORAM: Justice V. RAMASUBRAMANIAN 

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