Mandatory Language of Section 21-A Overrides Discretion of Section 24 CPC in Matrimonial Transfer Disputes: Bombay High Court Clarifies Legal Hierarchy

“When petitions under the Hindu Marriage Act are filed in different courts, the one filed later shall be transferred to the court where the earlier petition was instituted. The statutory command under Section 21-A(2)(b) leaves no room for discretion under Section 24 CPC” — Justice Rajesh S. Patil

In a significant ruling Bombay High Court laid down a clear precedent on the interplay between Section 21-A of the Hindu Marriage Act, 1955 and Section 24 of the Civil Procedure Code, 1908, while resolving cross-transfer petitions filed by a husband and wife before different courts within Maharashtra.

Rejecting the wife's plea to transfer the husband’s pending divorce petition from the Family Court, Bandra to the Civil Judge, Senior Division, Kalyan, and allowing the husband’s application instead, the Court held that Section 21-A, being a special provision and containing mandatory language, takes precedence over the general and discretionary transfer power under Section 24 CPC.

"Where Divorce Petitions Are Filed in Two Different Courts, the Later One Must Follow the Earlier—Wife’s Convenience Cannot Override Legislative Mandate"

In this case, the husband had filed his divorce petition first on 5 December 2022 before the Family Court at Bandra, whereas the wife filed her petition later on 14 December 2022 before the Civil Judge, Senior Division, Kalyan. The couple had filed Miscellaneous Civil Applications seeking opposing transfers, invoking Sections 21-A of the Hindu Marriage Act and 24 CPC.

While the wife argued convenience, especially as she resided in Kalyan, and cited judgments such as N.C.V. Aishwarya v. A.S. Saravana Karthik Sha and Sumita Singh v. Kumar Sanjay, the Court distinguished these rulings. Justice Patil clarified:

“The proceedings before the Supreme Court in Aishwarya and Sumita Singh were not governed by Section 21-A of the Hindu Marriage Act. They arose under Sections 9 and 12 of the Act or Section 125 CrPC, where the statutory compulsion under Section 21-A was not applicable.”

The Court relied instead on the binding text of Section 21-A(2)(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.”

It contrasted this with Section 24 CPC, which uses the word “may”, underscoring the discretionary nature of that provision.

“Special Law Prevails Over General Law” — Court Applies Rule of Interpretation in Favour of Section 21-A

The Court explicitly reaffirmed the statutory hierarchy, stating:

“The Hindu Marriage Act is a special law. Section 21-A of the Act contains mandatory language, whereas Section 24 of the CPC is general in nature and uses discretionary language. In cases where Section 21-A applies, its mandate must be followed.”

Referring to the Supreme Court’s observations in Guda Vijayalakshmi v. Guda Ramchandra Sekhara Sastry, (1981) 2 SCC 646, the Court acknowledged that Section 21-A is not exhaustive, and that CPC powers of transfer survive—but only in circumstances where Section 21-A is inapplicable.

In this case, since both parties had filed divorce petitions under Section 13 of the Hindu Marriage Act, and the husband’s petition was filed earlier, Section 21-A(2)(b) squarely applied.

“Distance of 50 km Does Not Warrant Judicial Intervention When Statute Commands Transfer” — Wife Allowed VC Option with Travel Reimbursement

Addressing the wife's argument about inconvenience in attending hearings in Bandra, the Court observed that the distance between Kalyan and Bandra is approximately 50 km, and not so unreasonable as to merit invoking discretionary jurisdiction under CPC:

“It will be possible for the wife to travel to and fro, to attend Court proceedings on the same day.”

The Court mitigated the hardship by directing the husband to pay ₹2,500 per hearing as travel expenses, and permitted the wife to attend hearings via video conferencing, unless her physical presence was expressly required by the Court.

“Once Statutory Conditions of Section 21-A Are Met, Transfer Must Follow—Judicial Discretion Is Not an Override Mechanism”

Justice Patil rejected the wife’s application (MCA No. 124 of 2024) and allowed the husband’s application (MCA No. 415 of 2024), holding:

“Taking into consideration the provisions of Section 21-A of the Hindu Marriage Act, the petition presented later shall be transferred to the District Court in which the earlier petition was presented.”

He further directed that:

• The wife’s petition (HMP No. 2159/2022) be transferred from Kalyan to Family Court, Bandra

• It be tagged with the husband’s petition (Marriage Petition No. 3540/2022)

• Both petitions be heard together by the same Judge

• The hearing be expedited

Additionally, the Court denied a last-minute request by the wife’s counsel to continue interim relief, stating: “Considering the facts of the present case, the request… is rejected.”

Bombay High Court Emphasizes Legislative Supremacy of Section 21-A in Transfer of Matrimonial Petitions

This judgment sets a definitive precedent in Maharashtra on the binding nature of Section 21-A(2)(b) of the Hindu Marriage Act, where divorce petitions are filed by both spouses in different courts within the same state. It affirms that the later petition must be transferred to the forum of the earlier petition, notwithstanding arguments based on convenience or economic hardship, unless exceptional circumstances exist outside the scope of Section 21-A.

It also clarifies that judicial discretion under Section 24 CPC cannot override a statutory command when the law expressly uses mandatory language.

Date of Decision: 10 October 2025