SC says you can’t transfer petition for RCR under Section 21-A(2)(b) of the Hindu Marriage Act, 1955

The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void

Supreme Court while hearing a case (Shruti Kaushal Bisht v. Kaushal R. Bisht)where the husband and wife both sought transfer of cases filed by both of them against one another, the single judge bench of Justice V. Ramasubramanian, allowed the transfer petition filed by the wife and transferred the divorce case instituted by the husband in Pune to Delhi on ground that wife have no independent source of income. The court also said that the phrase “the petition presented later” under Section 21-A (2) (b) of the Hindu Marriage Act, 1955 does not include a petition filed under Section 9 of the Act for restitution of conjugal rights.

Both the parties in the case got married to each other in November, 2015 and started living separately from January, 2019 as dispute arose between them. Soon after that in May 2019, the husband filed a petition for divorce before Family Court, Pune. Thereafter the wife (opponent) filed for transfer of the case to Family court, Saket, New Delhi in July followed by the petition of RCR. The ground she gave for transfer was that she has no independent source of income and since she isn’t even getting maintenance she is entitled for transfer.

In this case the court said that contentions u/s – 21-A(2)(b) of the Hindu Marriage Act, 1955 a petition filed later in point of time should be transferred to the Court in which a petition under the Act had been filed prior in point of time.

Noticing that Sub¬section (2) of Section 21-A has no independent existence de hors Sub-section (1), 

The court observed that- Sub¬Section (1) of Section 21-A, 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 or in a different State.”

In the present case, the petition that was filed by the husband at first was a petition for divorce and hence his case may fit into clause (a) of Sub-section (1) of section 21-A.

Therefore the Court directed to transfer the divorce petition from the Family Court, Pune to the Court of Principal Judge, Family Court, Saket, New Delhi and also directed that the case shall be tried together with the wife’s petition under Section 9 of HMA.