1. Cross-transfer petitions involving a divorce petition and a petition for restitution of conjugal rights under the Hindu Marriage Act. (Para 1 , 3 , 4 )
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2021 Supreme(SC) 91
SUPREME COURT OF INDIA
V. Ramasubramanian, J.
Shruti Kaushal Bisht – Petitioner
Versus
Kaushal R. Bisht – Respondent
Transfer Petition (Civil) No.1264 of 2019 with Transfer Petition (Civil) No.2168 of 2019
Decided On : 06-11-2020
Important Points
Section 21-A of the Hindu Marriage Act applies only when both petitions are for judicial separation or divorce. It does not apply if one petition is for restitution of conjugal rights. The Supreme Court retains power under Section 25(1) CPC to transfer cases based on the ends of justice.
Subject
Transfer of Cases - Transfer of Divorce and Restitution of Conjugal Rights Petitions
Act Referred
Headnote
Code of Civil Procedure, 1908 - Section 25(1) - Hindu Marriage Act, 1955 - Section 21-A, 21-A(2)(b) - Transfer Petition – Divorce – No maintenance – Restitution of conjugal rights - Power to transfer petitions in certain cases - Seeking transfer of divorce petition - While first transfer petition is by wife seeking transfer of divorce petition filed by husband in Family Court, second transfer petition is by husband seeking transfer of petition for restitution of conjugal rights filed by wife before Family Court - Held, Section 21-A of Hindu Marriage Act does not divest this Court of power available under Section 25(1) of Code of Civil Procedure Code, 1908 - Words “subject to other provisions contained in this Act” appearing in Section 21 of Hindu Marriage Act, 1955 were construed by this Court to indicate only those provisions which are inconsistent with any of provisions of Act - Only test prescribed in Section 25(1) of Code of Civil Procedure for exercise of power of transfer by this Court is “expediency for ends of justice”. Therefore, argument of learned counsel for husband centering around Section 21-A(2)(b) cannot be countenanced - Offer made by husband to meet travel expenses for wife, does not appeal to me, as she may have to travel a distance of more than 1000 km. every time. When contention that wife is unemployed and her claim that no maintenance is paid, are not seriously disputed, offer now made by husband does not convince Court - Transfer petition dismissed.
Legal Category Hierarchy
Table of Contents
2. Wife seeks transfer based on financial hardship; husband argues for transfer of the subsequent petition under Section 21-A(2)(b) of the Hindu Marriage Act. (Para 5 , 6 )
3. The court noted the wife's financial dependency and found that Section 21-A of the Hindu Marriage Act is inapplicable when petitions are for different reliefs. (Para 8 , 9 , 10 , 11 , 12 )
4. Section 21-A of the Hindu Marriage Act applies only when both petitions are for judicial separation or divorce; Section 25(1) CPC governs transfer based on expediency. (Para 10 , 11 , 12 )
5. Transfer petition filed by the wife allowed; transfer petition filed by the husband dismissed. (Para 13 )
6. When does Section 21-A of the Hindu Marriage Act, 1955, mandate the transfer of a subsequent petition to the court where the earlier petition was filed?
It applies only when both the earlier and subsequent petitions are filed for either judicial separation under Section 10 or divorce under Section 13. It does not apply if the subsequent petition is for a different relief, such as restitution of conjugal rights under Section 9. (Para 9 , 10 , 11 )
7. Does Section 21-A of the Hindu Marriage Act exclude the court's power to transfer proceedings under Section 25(1) of the Code of Civil Procedure, 1908?
No, Section 21-A does not divest the court of its power under Section 25(1) of the CPC. The court retains the authority to transfer cases based on the test of expediency for the ends of justice. (Para 12 )
8. How does the court view financial hardship and lack of maintenance in transfer petitions?
Where the wife is unemployed, has no independent source of income, and is not receiving maintenance, such factors support the transfer of proceedings to her location to ensure the ends of justice. (Para 8 , 12 )
ORDER :
1. While the first transfer petition is by the wife seeking transfer of the divorce petition filed by the husband in the Family Court at Pune, Maharashtra, the second transfer petition is by the husband seeking transfer of the petition for restitution of conjugal rights filed by the wife before the Family Court, Saket, New Delhi.
2. Heard the learned counsel on both sides.
3. The parties got married on 19.11.2015 at Delhi. It appears that disputes arose between the parties and the parties started living separately from 12.01.2019.
4. 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 July-2019. 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.
5. 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.
6. 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.
7. I carefully considered the rival contentions.
8. At the outset it should be pointed out that 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. On the contrary the husband has attempted to take advantage of the averment of the wife about her being unemployed, by claiming in ground no.(F) that no inconvenience will be caused to the wife, who is unemployed, if she is made to attend the proceedings in Pune. 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.
9. 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 21-A in entirety, which reads as follows:
“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, wh
