NITESH GAJANAN PATIL vs SUPRABHA NITESH PATIL ALISE SUPRABHA ANANT KHOT

Headnote:(A) Hindu Marriage Act, 1955 - Section 21-A - Code of Civil Procedure, 1908 - Section 24 - Transfer of matrimonial proceedings - Mandatory nature of Section 21-A(2)(b) - Where a petition for divorce or judicial separation is first presented by one party and a subsequent petition by the other party in a different district court, the later petition shall be transferred to the district court where the earlier petition was presented - The word "shall" in Section 21-A(2)(b) indicates a mandatory direction, whereas Section 24 CPC uses "may" and is discretionary - Being a special law, Section 21-A overrides the general power under Section 24 CPC - Convenience of the wife, though relevant under Section 24 CPC, cannot override the mandatory provision of Section 21-A when it applies - Distance of 50 km between the two courts and husband's offer to pay travel expenses considered - Wife's petition for transfer rejected, husband's petition allowed.

(B) Transfer - Principles - The ratio in N.C.V. Aishwarya (2022) regarding wife's convenience not applicable where Section 21-A HMA is invoked, as that case arose under Section 24 CPC only - Similarly, other decisions cited not involving Section 21-A are distinguishable.

Facts of the case:
The husband filed a divorce petition on 5th December 2022 before the Family Court at one location. The wife thereafter filed a divorce petition on 14th December 2022 before the Civil Judge, Senior Division at another location. The wife resided at a place approximately 50 km from the husband's court. The husband was employed at his place of residence and the wife was a homemaker living with her parents. Both parties sought transfer of the other's petition to their respective courts.

Findings of Court:
The court held that Section 21-A(2)(b) of the Hindu Marriage Act mandates the transfer of the later petition (wife's) to the district court where the earlier petition (husband's) was pending. The general power under Section 24 CPC cannot override this mandatory provision. The wife's reliance on judgments emphasizing wife's convenience was misplaced because those cases did not involve Section 21-A. The distance of 50 km was manageable, and the husband agreed to bear the wife's travelling expenses. Therefore, the husband's application for transfer was allowed.

Issues: (i) Whether Section 21-A of the Hindu Marriage Act mandates transfer of the later petition to the court where the earlier petition was filed, overriding considerations of wife's convenience? (ii) Whether the court's general power under Section 24 CPC can be exercised to transfer the husband's petition to the wife's court despite the mandatory provision of Section 21-A?

Ratio Decidendi: Section 21-A(2)(b) of the Hindu Marriage Act, being a special and mandatory provision, requires that where a petition for divorce or judicial separation is first presented by one party and a subsequent petition by the other party in a different district court, the later petition shall be transferred to the district court where the earlier petition was presented. The power under Section 24 CPC is discretionary and cannot be used to circumvent this mandatory direction. The convenience of the wife, though a relevant factor under general transfer principles, does not override the statutory mandate of Section 21-A.

Result: Miscellaneous Civil Application No.124 of 2024 (wife) rejected; Miscellaneous Civil Application No.415 of 2024 (husband) allowed. The Civil Judge, Senior Division at the wife's location was directed to transfer the wife's petition to the Family Court where the husband's petition was pending within four weeks. Both petitions to be heard together. The husband to pay Rs.2,500 per hearing date attended physically by the wife. Wife may also attend via video conferencing.

Legal Category Hierarchy

1. Cross divorce petitions — Determination of which petition to transfer under Section 21A Hindu Marriage Act. (Para 1 , 2 )

2. Husband argued mandatory transfer under Section 21A; wife argued convenience of wife under Section 24 CPC. (Para 3 , 4 )

3. Wife's transfer application rejected; husband's allowed. Wife's divorce petition transferred to Family Court Bandra. (Para 10 , 11 , 12 )

4. What is the effect of Section 21A of the Hindu Marriage Act when both parties file divorce petitions?

Section 21A(2)(b) mandates that the later petition shall be transferred to the district court where the earlier petition was presented, for joint hearing. (Para 5 , 6 , 7 )

5. Does the convenience of the wife override the mandatory transfer under Section 21A?

No, because Section 21A is a special provision for cross petitions under Sections 10/13 HMA and uses 'shall'; convenience of wife principle applies under Section 24 CPC but not when Section 21A applies. (Para 8 )

6. What factors are considered in determining transfer under Section 21A?

The key factor is which petition was filed earlier; the later petition must be transferred. Additional factors like distance and expense may support the decision. (Para 9 , 10 )

JUDGMENT :

1) Both the Husband and Wife have filed Miscellaneous Civil Applications for transfer of the proceedings. Wife is seeking a relief of transfer of Husband’s petition from Family Court at Bandra to Civil Judge, Senior Division, Kalyan and the Husband is seeking transfer of petition filed by the wife before Civil Judge, Senior Division, Kalyan to the Family Court at Bandra. In order to avoid conflicting judgments, it is necessary to club the petitions, hence either the petition filed by the Husband for transfer has to be allowed or else the petition filed by the wife has to be allowed.

2) Factually, there is no dispute that the Husband has first filed divorce petition on 5th December 2022 before the Family Court at Bandra, Mumbai. The wife thereafter on 14th December 2022 filed a divorce petition before the Civil Judge, Senior Division, Kalyan. The wife is residing with her parents and elder brother at Ambivali, Kalyan and the Husband is staying at Sewree, Mumbai. The distance between the two places is around 50 kms. The Husband is working in the Sales Department in Nexa Showroom in Mumbai and the wife is a Homemaker.

3) Learned Advocate appearing for the Husband has referred to the provisions of Section 21-A of the Hindu Marriage Act, 1955 and has argued that the said provisions are clear and more particularly sub-Sections (1) (a) and (2) (b) of Section 21-A. Therefore, according to him, there is no option but to transfer proceeding filed by the wife to the Family Court at Bandra, Mumbai, where the proceeding filed by the husband is pending.

4) Learned Advocate appearing for the wife has referred to the judgment delivered by the Supreme Court in case of N.C.V. Aishwarya Vs. A. S. Saravana Karthik Sha , reported in 2022 SCC OnLine SC 1199 and the judgment delivered by Single Judge of Bombay High Court in case of Yogini Umesh Chivhane Vs. Umesh Uttamrao Chivhane reported in (2004) 5 Bom CR 901 and submitted that in transfer proceedings, it is the convenience of the wife which has to be considered and hence, the Miscellaneous Civil Application of the wife has to be allowed and the Miscellaneous Civil Application of the husband has to be rejected. It is further submitted that the provision of Section 24 of the Code of Civil Procedure overrides Section 21A of the Hindu Marriage Act.

5) I have heard counsel for both the sides and have gone through the documents on record. It is necessary first to consider the provisions of Section 21-A of the Hindu Marriage Act, 1955, which deals with power to transfer petitions and directs their joint or consolidated trial “in certain cases” only. The said Section reads as under :-

21-A. 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, 1

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2025 Supreme(Online)(Bom) 193097

HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE RAJESH S. PATIL
NITESH GAJANAN PATIL – Appellant
Versus
SUPRABHA NITESH PATIL ALISE SUPRABHA ANANT KHOT – Respondent
MCA/415/2024

Under Section 21-A(2)(b) of the Hindu Marriage Act, a later divorce petition must be mandatorily transferred to the court where the earlier petition was filed, overriding the wife's convenience under Section 24 CPC.

Legal Category Hierarchy

Table of Contents

4. What is the effect of Section 21A of the Hindu Marriage Act when both parties file divorce petitions?

5. Does the convenience of the wife override the mandatory transfer under Section 21A?

6. What factors are considered in determining transfer under Section 21A?

2025 Supreme(Online)(Bom) 193097

HIGH COURT OF BOMBAYHON'BLE SHRI JUSTICE RAJESH S. PATILNITESH GAJANAN PATIL – AppellantVersusSUPRABHA NITESH PATIL ALISE SUPRABHA ANANT KHOT – RespondentMCA/415/2024

Under Section 21-A(2)(b) of the Hindu Marriage Act, a later divorce petition must be mandatorily transferred to the court where the earlier petition was filed, overriding the wife's convenience under Section 24 CPC.

Legal Category Hierarchy

Table of Contents

4. What is the effect of Section 21A of the Hindu Marriage Act when both parties file divorce petitions?

5. Does the convenience of the wife override the mandatory transfer under Section 21A?

6. What factors are considered in determining transfer under Section 21A?

Cases Referred (2)

HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE RAJESH S. PATIL
NITESH GAJANAN PATIL – Appellant
Versus
SUPRABHA NITESH PATIL ALISE SUPRABHA ANANT KHOT – Respondent
MCA/415/2024