In the matter of SHRUTI KAUSHAL BISHT v. KAUSHAL R. BISHT
Bench headed by Justice V. RAMASUBRAMANIAN held that Section 21-A of the Hindu Marriage Act does not divest the Supereme Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908.
(SHRUTI KAUSHAL BISHT v. KAUSHAL R. BISHT)
Sectopm 21A reads and explained by the Court:
Power to transfer petitions in certain cases:
(1) Where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub- section (2).
(2) In a case where sub-section (1) applies,
(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;
(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
It was stated that- Sub-Section (1) of Section 21A, 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 the other party to the marriage, files a petition either under Section 10 or under Section 13, before the same District Court or in a different District Court in the same State on in a different State.
Such types of cases, covered by Subsection (1), are required to be dealth with, in the manner specified in Sub-section (2). Subsection (2) of Section 21A, has no independent existence de hors Sub-section (1). A combined reading of Subsections (1) and (2) would show that the procedure prescribed by Subsection (2), applies only to situations covered by Subsection (1).
It was further held that a power to transfer the petition under Section 21A of the Hindu Marriage Act can be invoked only when the subsequent petition is either a petition seeking judicial separation (under Section 10) or a petition seeking divorce (under Section 13).
Section 21- A of the Hindu Marriage Act does not divest the Supreme Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908.
Earlier the Supreme Court in Guda Vijalakshmi v. Guda Ramchandra Sekhara Sastry, 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, 1955 were construed by this Court 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 Code of Civil Procedure for the exercise of the power of transfer by this Court is “expediency for the ends of justice”.
