Supreme Court

Shruti Kaushal Bisht vs. Kaushal R. Bisht

MANU/SC/0861/2020

06.11.2020

Family

Power to transfer the petition under Section 21A of the Hindu Marriage Act, 1955 can be invoked only when the subsequent petition is either for judicial separation or for divorce

In present matter, the parties got married on 19th November, 2015 at Delhi. It appears that, disputes arose between the parties and the parties started living separately from 12th January, 2019. 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. The transfer petition was filed in the first week of July-2019. Thereafter, the wife, perhaps as a counter¬blast, filed a petition for restitution of conjugal rights before the Family Court, New Delhi. Upon receipt of notice in the said petition, the husband has come up with Transfer Petition.

The main ground on which the wife seeks 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 petition for divorce filed by the husband could be tried together with the petition for restitution of conjugal rights filed by her.

The main ground on which the husband opposes the transfer petition filed by the wife, is that his own petition for divorce was prior in point of time and that therefore under Section 21¬A(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.

According to Section 21 A of the Act, Court has power to transfer petitions in certain cases where ¬a petition 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 of the Act or for a decree of divorce under Section 13 of the Act. The claim of the Petitioner that, she is unemployed and that she has no independent source of income and that she is dependent upon her parents, is not seriously disputed by the husband. The claim of the wife that, she is not receiving any maintenance, is also not disputed. Therefore, considering the fact that the marriage was also solemnized in Delhi, the petition for transfer filed by the wife deserves to be allowed and the one filed by the husband deserves to be dismissed.

Sub¬Section (1) of Section 21¬A of the Act, 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 Sub¬section (1), are required to be dealt with, in the manner specified in Sub¬section (2). Sub¬section (2) of Section 21-A of the Act, has no independent existence de hors Sub¬section (1). A combined reading of Sub-¬sections (1) and (2) would show that, the procedure prescribed by Sub¬section (2), applies only to situations covered by Sub¬section (1).

Section 21¬A of the Act does not divest present Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908 (CPC). The argument of the learned counsel for the husband centering around Section 21¬A(2)(b) of the Act cannot countenanced. The offer made by the husband to meet the travel expenses for the wife, does not appeal to present Court, as she may have to travel a distance of more than 1000 km. every time.

In view of the above, the Transfer Petition filed by the wife is allowed and, accordingly, the divorce petition is transferred from the Family Court Pune, Maharashtra to the Court of Principal Judge, Family Court, New Delhi.

Tags : Divorce petition Transfer Entitlement

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