'Second Plea For Divorce Under HMA Has To Be Transferred To Court Where First Petition Was Filed': Bombay High Court

The Bombay High Court has held that when two petitions for divorce or judicial separation between the same parties are filed in different courts, the second petition must be transferred to the court where the first petition was filed, in accordance with Section 21-A of the Hindu Marriage Act, 1955.Justice Rajesh S. Patil was hearing two transfer applications filed by husband and wife. The wife sought transfer of her husband's divorce petition from the Family Court at Bandra, Mumbai, to the Civil Judge, Senior Division, Kalyan, where she had subsequently filed her own petition. Conversely, the husband sought transfer of the wife's petition at Kalyan to the Family Court at Bandra.The Court noted that the husband's petition for divorce was filed first, on 5 December 2022, while the wife filed her petition for divorce nine days later, on 14 December 2022. Relying on Section 21-A(2)(b) of the Hindu Marriage Act, the Court held that the later petition must be transferred to the court where the earlier petition is pending. “… taking into consideration the provisions of Section 21-A of the Hindu Marriage Act, when the proceedings are filed by the husband or wife under Section 10 (Judicial Separation) or for a decree of divorce under Section 13, and thereafter another proceeding is filed by the other party… 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,” the Court observed.The wife's counsel argued that under Section 24 CPC and the Supreme Court's judgment in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha (2022), the wife's convenience must be prioritised in transfer applications. However, the Court distinguished these precedents, observing that they were not cases under Section 21-A. “… the proceedings before the Supreme Court were not under Section 21A of the Hindu Marriage Act. The proceedings in that case arose under Sections 9 and 12 of the Hindu Marriage Act and also under Section 125 of the Criminal Procedure Code. Therefore, the ratio of this decision will not be applicable to the present proceedings,” the Court observed.Considering the 50-kilometre distance between the two places in contention, the Court held that the wife's inconvenience could be mitigated by allowing her to attend proceedings through video conferencing or by directing the husband to pay for her travel expenses.Accordingly, the Court rejected the wife's transfer application.Case Title: Suprabha Nitesh Patil @ Suprabha Anant Khot v. Nitesh Gajanan Patil [Miscellaneous Civil Applications Nos. 124 of 2024]Click Here To Read/Download Order

'Second Plea For Divorce Under HMA Has To Be Transferred To Court Where First Petition Was Filed': Bombay High Court

Saksham Vaishya

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