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, 1908