Judge: Hon’ble Mr. Justice V. Ramasubramanian

FACTS OF THE CASE

To put things in perspective, it is then envisaged in para 4 that, the husband filed a petition for divorce before the Family Court, Pune, Maharashtra. After the receipt of notice in the said petition, the wife came up with the Transfer Petition.  Perhaps as a counter-blast, the wife filed a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi. Upon receipt of notice in the said petition, the husband has come up with Transfer Petition also.

ISSUE

Can husband seek benefit under section 21A of the Hindu Marriage Act to get it transferred in the jurisdiction of his choice?

TAKEAWAYS OF THE JUDGMENT

1. Section 21A (1) of HMA deals petition either for judicial separation under Section 10 or for a decree of divorce

Section 21A (1), 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 dehors 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)

2. Supreme Court is not divested of its power under Section 25 (1) of the CPC 

Justice V Ramasubramanian of the Apex Court 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 Ramasubramanian also added 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.

3. Plain reading of Section 21A (2) (b) of the Hindu Marriage Act 

The learned counsel appearing for the husband places heavy reliance upon Section 21-A(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 said contention is misconceived, as can be seen from the plain language of Section 21A in entirety.

“21A. 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.

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 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.

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 pre-conditions stipulated therein are not satisfied.

4. The substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955

Most significantly, it is then observed in para 12 that, “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 AIR 1981 SC 1143, 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”. Therefore, the argument of the learned counsel for the husband centring around Section 21A(2)(b) cannot be countenanced. The offer made by the husband to meet the travel expenses for the wife does not appeal to me, as she may have to travel a distance of more than 1000 km every time. 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.”

5. Section 21A of the Hindu Marriage Act can be invoked by plain reading.

In sum, the Apex Court in this leading case thus clarifies as to when can transfer petitions U/s 21A of the Hindu Marriage Act be invoked. We have already dwelt considerably on it. What has thus been laid down, in this case, must always be adhered to in letter and spirit? There can certainly be no denying it!

 
AUTHOR OF THE ARTICLE

SANJEEV SIROHI
Advocate, Practicing criminal law and revenue matters in courts of Uttar Pradesh