Thinking of seeking transfer of petition for restitution of conjugal rights under Section 21-A(2)(b) of the Hindu Marriage Act, 1955? SC says you can’t

Supreme Court: In a case where the husband and wife both sought transfer of cases filed against by both of them against one another, the single judge bench of V. Ramasubramanian, J allowed the transfer petition filed by the wife and transferred the divorce case instituted by the husband in Pune to Delhi on ground wife having no independent source of income. The bench held that the phrase “the petition presented later” under Section 21-A(2)(b) of the Hindu Marriage Act, 1955 does not include a petition filed under Section 9 of the Act for restitution of conjugal rights.


Backstory


Both the parties got married to each other in November, 2015 and started living separately from January, 2019 as dispute arose between them. Soon after, in May 2019, the husband filed a petition for divorce before Family Court, Pune.

The wife filed a transfer petition in the first week of July, 2019, followed by a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi on July 15, 2019. The husband then filed a petition seeking transfer of the petition for restitution of conjugal rights to Pune.

The wife sought transfer on the ground 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 husband, on the other hand, contended 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. He also offered to bear the expenses for the travel of the wife from Delhi to Pune.

He, further, stated 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.


Analysis


The Court was of the opinion that the contention that under Section 21-A(2)(b) of the Hindu Marriage Act, 1955[1], 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, is misconceived.

Noticing that Sub¬section (2) of Section 21-A has no independent existence de hors Sub-section (1), the Court explained,

“Sub¬Section (1) of Section 21-A, 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.”

In the present case, the petition that 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 Sub-section (1) of section 21-A but,

“… 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. Hence, the wife’s petition, though subsequent in point of time, does not fall under Clause (b) of Sub-section (1) of Section 21-A. As a consequence, Sub-section (1) of Section 21-A has no application to the case on hand, as the pre-conditions stipulated therein are not satisfied.”

On the offer made by the husband to meet the travel expenses for the wife, the Court said that the wife may have to travel a distance of more than 1000 km. every time and hence,

“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 Court, hence, directed the divorce petition from the Family Court, Pune to the Court of Principal Judge, Family Court, Saket, New Delhi and directed that it shall be tried together with the wife’s petition under Section 9 of the Act.

[Shruti Kaushal Bisht v. Kaushal R. Bisht, 2020 SCC OnLine SC 913, order dated 06.11.2020]


[1]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 sub-section (2).

(2)  In a case where sub-section (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 sub-section (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.

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