LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Anjuru Chandra Sekhar (Advocate )     24 June 2012

Transfer of petitions s.21a of hma

Section 21 of the Hindu Marriage Act only provides that "all proceedings under the Hindu Marriage Act shall be regulated as far as may be by the Code of Civil Procedure, 1908". Section 21 of the Hindu Marriage Act does not deal with the question of jurisdiction of any court and it cannot be construed to exclude the jurisdiction conferred on the Supreme Court under section 25 C.P.C. [232 E-G] 2 : 3. Section 21A of the Hindu Marriage Act has, indeed, no bearing on the question of jurisdiction conferred on the Supreme Court under section 25 C.P.C. Section 21A has no application to the case of transfer of any suit or proceeding from one State to another. [233 B-C] 2 : 4. The Supreme Court must necessarily enjoy the power and jurisdiction under the provisions of section 25 C.P.C. of transferring such a suit or proceeding for the ends of justice unless the power and jurisdiction of the Supreme Court are specifically taken away by any statute. [232D-E]


3. Section 25 of the Code of Civil Procedure came into force after section 21 and 21A of the Hindu Marriage Act have been incorporated in the Hindu Marriage Act, 1955 and as such section 25 of the Code overrides sections 21 and 21A of the Hindu Marriage Act. [233 A-E]


Supreme Court of India

Guda Vijayalakshmi vs Guda Ramchandra Sekhara Sastry on 13 March, 1981

Equivalent citations: 1981 AIR 1143, 1981 SCR (3) 223

Author: P Tulzapurkar

Bench: Tulzapurkar, V.D.





S.21 of HMA did not start with a non-obstante clause hence I differ with the view taken Apex Court and agree with the view of the respondent's counsel in the above decision. The Supreme Court derives power under S.25 of CPC with regard to Transfer of petitions in view of S.21 of HMA.  However S.21 of HMA says "Subject to the other provisions contained in this Act and such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."


Hence where the HMA is not clear about a particular course to be adopted in so far as the procedure of Transfer of petitions is concerned, the provisions of CPC become operative.  Only in such eventuality the provisions of CPC viz., S.22 to 25 of CPC come into picture. Under such circumstances only the Supreme Court can invoke its powers under S.25 of CPC.  Like the petitioner had filed for divorce under S.13 of HMA and the respondent filed another petition under S.9 of HMA for RCR in a different District court, then CPC comes into picture.  Otherwise, S.21A of HMA is very clear about transfer of petitions filed under S.10 and S.13 of HMA.


Because of this decision the courts have started shifting the responsibility on to higher forums when parties are filing applications for transfer and finally they are landing up in Supreme Court, after one forum after other referring the parties to approach a higher forum. 


S.21A (2)(b) is very clear in saying that "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.". 


However Supreme Court int the above decision has taken a view - "So far as Section 21A of Hindu Marriage Act is concerned since the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their Joint or consolidated trial "in certain cases" and is not exhaustive..... This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old Sections 24 and 25, C.P.C. It does not deal with the present Section 25 which has been substituted by an amendment which has come into force with effect from February 1, 1977 (Section 11 of the Amendment Act 104 of 1976). By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State. Such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time enactment of Section 21A of the Hindu Marriage Act, 1955. It is, therefore, difficult to accept the contention that Section 21A of Hindu Marriage Act excludes the power of transfer conferred upon this Court by the present Section 25 of C.P.C. in relation to proceedings under that Act."


There is no contention in the power of Supreme Court under S.25 of CPC in so far as it relates to the situations not covered by S.21A of HMA.  Where a particular situation is covered by the HMA like petitioner filing under S.10 or S.13 of HMA in one District court and the respondent filing another petition under same sections, the provisions in S.25A(2)(b) become operative.  To presume that the authority to transfer a petition from civil court of one state to civil court of another state vests only with Supreme Court and hence the provisions of CPC 25 only will apply will defeat the purposive interpretation of S.21A(2)(b) of HMA.  If both S.21 of HMA and S.25 of CPC had started with non-obstante clauses then the S.25 of CPC would have overriding effect on S.21 of HMA.  As S.21 of HMA did not begin with a non-obstance clause there is no point in saying S.25 of CPC was amended after S.21A was made hence S.25 will have overriding effect over provisions of HMA.


 3 Replies

Anjuru Chandra Sekhar (Advocate )     24 June 2012

Agreed that S.25 of CPC gives power to Supreme Court to transfer petition filed in one civil court of a State to another civil court of another State.  However, S.21A(3) does not confer the authority to Supreme Court to transfer petitions under S.25 of CPC it only says, whatever court is competent under CPC, 1908 shall transfer the petition as per the provisions of S.21A(2)(b) of HMA.  Where HMA is not clear about procedures with regard to transfer or silent, as the case may be, the provisions of CPC become operative in accordance with S.21 of HMA. 

Anjuru Chandra Sekhar (Advocate )     24 June 2012

However it is also true that if the law is strictly implemented in terms of S.21A(2)(b) of HMA then the party filing the petition earlier will enjoy absolute advantage over the party filing the petition later.  That means, a party that cannot afford to travel to the location of district court to which the petition is transferred in terms of said section, will be totally at disadvantage whether it is husband or wife.  A rich husband forcing a poor wife to ply to his District court from her parent's house or a rich wife forcing a poor husband to ply to her District court, both taking advantage by virtue of filing the petition first, is not a situation envisaged by the said section.  Hence for every rule there shall be exceptions so that law does not become draconian in favor of anyone who can take undue advantage of it.


Hence a proviso is needed under S.21A(2)(b) to cede authority to the court deciding about the transfer to take into consideration the hardships faced by the party that filed the petition later who is at disadvantage for filing it later.  I think this had a overwhelming effect in the minds of Ld. Judges in sidelining the S.21A(2)(b) of HMA and taking authority by declaring the law in favor of its own in the above decision.

Raj (fr)     08 May 2013

SC has interim stay order on eX-partee my Mat.Suit U/s 13 of HMA but has child custody u/s26 of HMA which arising out of the mat suit u/s 13 with Mat suit no. xxx/xxxx.Is the stay applicable on the child custody proceeding also or only on the mat suit as in the order there no mention of child custody suit which was a separate suit but my petition has mention of mat. suit no. also and written "arising out of the mat suit u/s 13 with Mat suit no. xxx/xxxx.". Even my lawyer saying that the second suit of child custody in family court will not be heard. What to do now.How to proceed or is there any SC judgement to support the case. Rgds, Raj

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  

Popular Discussion

view more »

Post a Suggestion for LCI Team
Post a Legal Query