Supreme Court Explains Power of Courts to Transfer Petition under Hindu Marriage Act

Two transfer petitions were filed before the Supreme Court by a husband and wife in a divorce petition. The Court held that the petition filed by the wife deserves to be allowed while the petition filed by the Husband was dismissed.

Background:

The parties in the instant case got married in November 2015, but due to differences, they started living separately from January 2019.

The Husband filed a divorce petition in May 2019 before the Family Court, Pune. After the notice was served on the wife, she filed a transfer petition in July 2019.

After that, a petition for restitution of conjugal rights was filed by the wife, on receipt of the notice the Husband filed a transfer petition as well.

Grounds taken by the parties.

The wife had stated that the petition should be transferred to Delhi as she has no independent source of income, and the Husband is not even paying maintenance to her. It was also stated that if the petition is transferred to Delhi, then both the petitions can be tried together.

The main ground taken by the Husband is that his petition was filed before the petition filed by the wife. Therefore u/s 21-A(2)(b) of Hindu Marriage Act the petition should be transferred to Pune. he also submitted that his parents are old and are suffering diseases that is why he cannot come to Delhi.

Observation and Order of the Court:

The Court observed that the Husband does not dispute the contention of the wife that she has no source of income and is dependent on her parents and on the contrary, the Husband has contended that because the wife is unemployed, she can come to Pune.

The Court held that because the marriage was solemnised in Delhi, the transfer petition filed by the wife deserves to be allowed, and the petition filed by the Husband deserves to be dismissed.

It was also opined that the contention that u/s Section 21-A(2)(b) of Hindu Marriage Act, the petition filed later in time should be transferred to the Court where the first petition was filed was misconceived.

Hon’ble Court observed that subsection 1 of section 21-A dealt with a situation where a petition was filed either for a decree of divorce u/s 13 or for judicial separation u/s 10 before the District Court which has the jurisdiction and after that the other party files a petition either u/s 13 or u/s 10 before the same or other Court in the same or different State.

However, in the instant case, the petition filed by the Husband was a divorce petition and not for restitution of conjugal rights so it will not fit in clause (a) of Sub-section (1) of section 21-A.

The Court directed that the divorce petition from Family Court, Pune to Principal Judge, Family Court, Saket, Delhi and both the petition should be tried together as well.