Power to transfer petition under exceptional circumstances written by Surya Sunilkumar student of Ramaiah institute of legal studies
On 6th November 2020 the decision taken by the Hon’ble Supreme Court of India in Shruti Kaushal Bisht Vs Kaushal R Bisht, the court discussed the ambit and application of Section 21- A of Hindu Marriage Act. The section talks about the power to transfer petitions in certain cases. This section provides the guidelines as to when can a petition under this Act be transferred to a different court in the interest of justice.
Facts of the case
The parties of the petition got married in the year 19.11.2015 but eventually, disputes started arising between them. Both the parties decided to live separately from 12.01.2019. A divorce petition was filed by the husband on 7.5.2019 before the Family court in Pune Maharashtra. After receiving a notice regarding the divorce petition the wife filed for transfer of petition and later as a response to the divorce petition filed by the husband. She also filed a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi. Upon receiving the said petition filed by the wife the husband also filed for transfer of petition.
Arguments of both the parties
Some of the arguments made by the counsel of the wife were as follows:
• The grounds on which the wife seeks transfer of the husband’s divorce petition from Pune to New Delhi is because she has no independent source of income and since her husband is not paying the maintenance she is entitled to transfer of petition from Family Court in Pune to Family Court in Delhi.
• This was pleaded to try both divorce petition and restitution of conjugal rights petition in one court.
• It was argued that as the wife was unemployed and she is depended on her parents.
Some of the contentions made by the husband were as follows:
• The husband opposed that 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.
• He agreed to bear the expenses of the wife to travel from Delhi to Pune.
• He also stated that his father suffers from seizures and asthma and his mother had undergone a cervical biopsy due to which he was needed by his aged parents.
The rationale of the Judgment
The judges decided the case considering the following contentions made by both the parties:
• The claim made by the petitioner that she is unemployed and doesn’t have an independent source of income was not seriously disputed by the respondent but on the contrary, he has attempted to take advantage of the fact that the wife is unemployed by claiming in the 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 regarding not giving maintenance is also not disputed.
• The respondent’s party has highly relied on Sec 21-A (2)(b) of Hindu Marriage Act 1956, the section provides guidelines as to transfer of petition for certain cases. It is to be observed that the court in the order has stated that “…contention is misconceived, as can be seen from the plain language of Section 21-A in entirety,…” here the court has tried to enunciate the scope of interpretation of this Section in this case.
• The court referred the case of Guda Vijalakshmi vs. Guda Ramchandra Sekhara Sastry wherein the Court 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 Supreme Court observed the contentions made by the parties and passed an order in the favour of the wife. Thus the petitions of divorce and restitution of conjugal rights are to be tried in the Family Court of Delhi.
In this case, the court has adopted an analytical approach towards interpreting the language of the law made. The court determined that the pre-condition for application of Section 21-A was not satisfied due to which the petition was transferred to Pune. It is to be seen that Sec 25 of CPC has prevailed wherein a conflict of both the sections was observed.