Transfer Of Matrimonial Case

Date :16-Nov-2020

By Adv. R. S. Agrawal :

IN THE Order passed in the matrimonial case- Shruti Kaushal Bisht v. Kaushal R. Bisht on November 6, 2020, Justice V. Ramasubramanian, at the Supreme Court, has considered that the claim of the wife Shruti that she is not receiving maintenance, has not been disputed, therefore considering the fact that the marriage was also solemnised in Delhi the wife’s petition for transferring the case to Delhi deserves to be allowed and husband Kaushal’s petition deserves dismissal.

The SC has noted that 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 and 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 at Saket, New Delhi. The husband’s counsel placed 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 the petition under the Act had been filed prior in point of time. But the said contention, according to the SC is misconceived, as can be seen from the plain language of Section 21-A in entirety.

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 other party to the marriage, files a petition under Section 10 or 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). This sub-Section of Section 21-A has no independent existence de horse 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).

In this case, what 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 unfortunately for him, 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. Thus, 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 this case, as the pre-conditions stipulated therein are not satisfied. In any case, Section 21-A of the Hindu Marriage Act does not divest the SC of the power available under Section 25(1) of the Civil Procedure Code, 1908. In the judgement of the case – Guda Vijalakshmi v Guda Ramchandra Sekhara Sastry- AIR 1981 SC 1143, the SC rejected the contention that the substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955.

The words “subject to the other provisions contained in this Act” appearing in Section 21 of the Hindu Marriage Act were construed by the SC to indicate only those provisions which are inconsistent with any of the provisions of the Act. The only test prescribed in Section 25 (1) of the C.P.C. for the exercise of the power of transfer by the SC is “expediency for the ends of justice”. Therefore, the argument of the counsel for the husband centering around Section 21-A(2)(b) cannot be accepted. The offer made by the husband to meet the travel expenses for the wife did not appeal to the Court, as she may have to travel a distance of more than 1000 KMs each time. When the contention is that the wife is unemployed and her claim that no maintenance is paid, are not seriously disputed, the offer made did not convince the Court. The parties got married on November 19, 2015 at Delhi. It appears that disputes arose between the parties and they started living separately from January 12, 2019.

The husband filed a petition for divorce on May 7, 2019 before the Family Court at Pune. After receipt of notice of the said petition, the wife responded with the transfer petition (1264/2019) in July-2019. Thereafter, the wife, perhaps by way of a counter-blast, filed a petition for restitution of conjugal rights before the Family Court, at Saket, New Delhi on July 15, 2019. Upon receipt of notice in the said petition, the husband has come up with his Transfer Petition (2168/2019).

The main ground on which the wife sought transfer of the husband’s divorce petition from Pune to New Delhi was that she has no independent source of income and that since the husband is not even paying 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 her petition for restitution of conjugal rights. The main ground on which the husband opposed the wife’s transfer petition was that his own petition was prior in point of time and therefore, under Section 21-A (2)(b), the petition filed by the wife subsequently, is liable to be transferred to Pune.

The husband has offered to bear travel expenses of the wife from Delhi to Pune. The husband 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 was not possible for him to leave his aged parents and travel to Delhi for conducting the proceedings. After considering the material on record and the relevant law, the Supreme Court allowed the Transfer Petition filed by the wife and transferred the divorce petition of the husband from Family Court, Pune to Family Court at New Delhi and it shall be tried together with the wife’s petition under Section 9 of the Act. The apex court also dismissed the Transfer Petition filed by the husband.