Authority to transfer petitions in exceptional circumstances written by Surya Sunilkumar, student at the Ramaiah Institute of Legal Studies
On November 6, 2020, the court discussed the scope and application of Section 21-A of the Hindu Marriage Act in the decision of the Hon’ble Supreme Court of India in Shruti Kaushal Bisht v. Kaushal R Bisht. The section talks about the power to transfer petitions in certain cases. This section provides guidelines on when a petition may be referred to another court in the interests of justice under this law.
Facts of the case
The parties to the petition were married on November 19, 2015, but eventually a dispute broke out between them. Both parties have decided to live separately from January 12, 2019. A divorce petition was filed by the husband on 7 May 2019 at the family court in Pune Maharashtra. Upon receiving a notice regarding the divorce petition, the wife requested transfer of the petition and later in response to the divorce petition filed by the husband. She also filed an application for the restitution of marriage rights to the Family Court in Saket, New Delhi. After receiving the petition submitted by the wife, the husband also requested transfer of the petition.
Arguments from both parties
Some of the arguments of the woman’s lawyer were as follows:
• The reason the wife is requesting the transfer of the husband’s petition for divorce from Pune to New Delhi is because she has no independent source of income and her husband does not pay maintenance, she is entitled to submit the petition to the Pune Family Court to transfer family court in Delhi.
• This was relied on in order to consider both the divorce petition and the filing of the matrimonial petition refund in court.
• It was argued that the woman was unemployed and dependent on her parents.
Some of the objections raised by the husband were as follows:
• The husband refused that the application for transfer submitted by the wife was priority at that time and therefore that under Section 21-A (2) (b) of the Hindu Marriage Act of 1955, the application was later filed by the woman , can be transferred to Pune.
• He agreed to pay the woman’s expenses for the trip from Delhi to Pune.
• He also reported that his father had seizures and asthma, and that his mother had had a cervical biopsy that was needed by his elderly parents.
The reasoning of the judgment
The judges decided the case taking into account the following objections raised by both parties:
• The petitioner’s claim that she was unemployed and had no independent source of income was not seriously contested by the interviewee. On the contrary, he has tried to take advantage of the fact that the woman is unemployed by making a claim under Floor No. (F) that the unemployed woman will not inconvenience if she is forced to participate in the Pune trial .
• The wife’s right not to pay maintenance is also undisputed.
• Respondent’s party has relied heavily on Section 21-A (2) (b) of the 1956 Hindu Marriage Act. The section provides guidelines for transferring petitions in specific cases. It should be noted that the court found in the order that “… the assertion is misunderstood, as is clear from the plain language of Section 21-A as a whole …”. Here the court has tried to expand the scope of the interpretation of this section in this case.
• The court referred to the Guda Vijalakshmi v. Guda Ramchandra Sekhara Sastry case, in which the court rejected the allegation that the substantive provision contained in Section 25 CPC was precluded by Section 21 of the 1955 Hindu Marriage Act.
The Supreme Court took note of the parties’ objections and issued an order in favor of the woman. Therefore, the applications for divorce and the return of marriage rights are to be tried in the Delhi Family Court.
In this case, the court took an analytical approach to interpreting the language of the law struck. The court found that the requirement to apply Section 21-A was not met, so the petition was forwarded to Pune. It can be seen that Section 25 of the CPC has prevailed in which a conflict between the two sections has been observed.