Facts
The husband and wife wanted to part ways. The husband filed a petition before the Family Court, Bandra, Mumbai, seeking for divorce on 5th December, 2022. The wife, later on 14th December, filed a petition for divorce before the Civil Judge, Senior Division, Kalyan.
The husband is working in the Sales department of the Nexa showroom in Mumbai and is residing at Sewree, Mumbai. The wife is staying in Kalyan with her parents and elder brother at Ambivali, Kalyan. The wife is a homemaker, and the distance between the two places is 50 km.
The husband and wife have both filed miscellaneous civil applications for the transfer of the petitions. The wife has asked to transfer the petition filed by the husband in Bandra to Kalyan, and the husband has asked for the transfer of the petition filed by the wife in Kalyan to Bandra.
Issues
- Where shall the petitions be transferred to?
- Whether Sections 21A of the Hindu Marriage Act, 1956, would override Sections 24 and 25 of the CPC?
Legal Provisions
- Section 10 of the Hindu Marriage Act, 1956, provides the provisions for judicial separation.
- Section 13 of the Hindu Marriage Act, 1956, provides the grounds for divorce.
- Section 21 A of the Hindu Marriage Act, 1956, provides the provisions for the filing of a petition for judicial separation and divorce, along with the rights of courts and government to transfer the petition filed at one court to another if they deem it fit.
- Section 24 of the CPC states the general powers of the High Court and District Courts to transfer petitions from one court to another.
- Section 25 of the CPC states the power of the Supreme Court to transfer cases from one court to another between states and within a state. It was added through the 1976 Amendment to the CPC.
Analysis
The wife’s contention was that she would have to travel to Bandra for the hearings, and moreover, the council cited the case of N.C.V. Aishwarya Vs. A. S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199 and the case of Yogini Umesh Chivhane Vs. Umesh Uttamrao Chivhane reported in (2004) 5 Bom CR 901, in which it was held that in the transfer of proceedings, the interest of the wife shall be considered.
The High Court of Bombay looked into these cases and cited a few cases of its own. The Court analysed Section 21A of the HMA,1956, and Sections 24 and 25 of the CPC. The Court observed that Section 21A is particular to HMA and shall deal with only matters pertinent to Sections 10 and 13 of the HMA. Section 24 of the CPC is the general power of the High Court and District Courts to transfer cases. Section 25 lays the power of the Supreme Court to transfer cases. The Bombay High Court observed that in the N.C.V. Aishwarya case, the interest of the wife was upheld by the Supreme Court using the powers given in Section 25 of CPC, but the petition was filed under Sections 9 and 12 of the HMA and Section 125 of the CPC. So, it cannot be taken into consideration in this case. The High Court cited the case of Guda Vijayalakshmi Vs. Guda Ramchandra Sekhara Sastry reported in (1981) 2 SCC 646, in which the husband’s petition was transferred to the court in which the wife’s petition was pending. This was done under Section 25 of CPC by the Supreme Court, stating that 21A of HMA is not exhaustive, and the court can resort to sections 23 and 25 of CPC for matters filed under sections 10 and 9 of the HMA. The wife was in Andhra Pradesh and the husband in Rajasthan, and given the distance, the Supreme Court upheld the interest of the wife and transferred the case to Andhra Pradesh. The High Court observed that it is only in exceptional matters that cases can be transferred, and it is not always in the interest of the wife, but must be compatible for both spouses.
Judgment
The High Court held that there was only 50 km distance between both the places and the wife can travel the distance and given that the husband has agreed to cover her travel cost for the days she physically represents herself in the court, the petition filed by the wife is transferred and joined with the petition filed by the husband and the husband shall pay INR 2,500 to the wife, 48 hrs prior to the days she will present herself in the court.
Conclusion
The court observed that in cases where the petition is filed for matters mentioned in other sections of the HMA, not including sections 10 and 13, Sections 24 and 25 of the CPC shall be upheld, and the courts can exercise their power of transfer under this section, and 21A is not exhaustive and can be over-ridden by Sections 24 and 25 of the CPC.
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WRITTEN BY I Sharan
