Multiplicity of Divorce Proceedings to Be Avoided — Second Plea Must Go to the Same Court

In matrimonial disputes, one of the recurring procedural complications arises when both spouses file petitions for divorce or judicial separation in different courts. The question then becomes: which court should proceed, and how should the cases be handled to prevent conflicting decisions? Bombay High Court, in Suprabha Nitesh Patil @ Suprabha Anant Khot v. Nitesh Gajanan Patil (2025:BHC-AS:44381), addressed this issue comprehensively. Justice Rajesh S. Patil clarified that when two petitions under the Hindu Marriage Act, 1955 (“HMA”) are filed by the same parties, the later petition must be transferred to the court where the first was filed, in accordance with Section 21-A of the Act.

The ruling reinforces the principle that multiplicity of proceedings must be avoided and that the statutory mandate under Section 21-A is binding, unlike the discretionary power of transfer under Section 24 of the Code of Civil Procedure (CPC).

Factual Background

The case concerned two cross-petitions for divorce between Suprabha Nitesh Patil and Nitesh Gajanan Patil.

• The husband first filed a divorce petition on 5 December 2022 before the Family Court, Bandra, Mumbai.
• The wife, a homemaker residing with her parents at Kalyan, filed her own divorce petition on 14 December 2022 before the Civil Judge (Senior Division), Kalyan.

Thus, two separate divorce proceedings—based on the same marriage and filed within days—were pending before two different courts approximately 50 kilometres apart.

Each party then filed a Miscellaneous Civil Application seeking transfer of the other’s case:

• The wife (MCA 124/2024) sought transfer of the husband’s Bandra petition to Kalyan, citing her convenience.
• The husband (MCA 415/2024) sought transfer of the wife’s Kalyan petition to Bandra, invoking Section 21-A of the HMA.

The High Court was thus called upon to determine which application should prevail.

Issues

1. Whether Section 21-A of the Hindu Marriage Act, 1955 mandates transfer of a later-filed matrimonial petition to the court where the earlier one was instituted.
2. Whether Section 24 of the Code of Civil Procedure, 1908 (CPC)—which gives courts a general power to transfer proceedings—can override or qualify Section 21-A.
3. Whether the wife’s convenience should govern the decision, as is often the case in transfer petitions, especially where distances or financial constraints are involved.

Statutory Framework

Section 21-A, Hindu Marriage Act, 1955

This provision, inserted in 1976, deals specifically with power to transfer petitions and their joint or consolidated trial in certain cases. It states that:

• When one spouse files a petition for judicial separation or divorce, and the other spouse later files another petition under the same Act,
• The later petition “shall” be transferred to the court where the earlier petition was filed,
• And both petitions “shall” be heard and disposed of together.

This provision aims to prevent contradictory decrees from different courts concerning the same marriage.

Section 24, Code of Civil Procedure, 1908

Section 24 gives the High Court or the District Court a general and discretionary power (“may”) to transfer or withdraw cases between subordinate courts in the interest of justice or convenience. Unlike Section 21-A, it applies broadly to all civil proceedings, not merely matrimonial ones.

Arguments of the Parties

For the Husband

• The husband’s counsel argued that Section 21-A leaves no room for discretion: since his petition was filed first at Bandra, the wife’s later petition must be transferred there.
• The use of the word “shall” in Section 21-A(2)(b) makes it mandatory, while the word “may” in Section 24 CPC shows that the latter is only directory.
• To avoid conflicting judgments, both cases should be heard together in the same court.

For the Wife

• The wife’s counsel relied on the Supreme Court’s decision in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha (2022 SCC OnLine SC 1199) and the Bombay High Court decision in Yogini Umesh Chivhane v. Umesh Uttamrao Chivhane (2004 5 Bom CR 901), arguing that the wife’s convenience should prevail in matrimonial matters.
• It was contended that Section 24 CPC gives the High Court overriding power to transfer cases, even in matrimonial disputes, and that travel from Kalyan to Bandra would cause undue hardship to the wife.
• Thus, the husband’s petition should be transferred to Kalyan.

The Court’s Analysis

1. Mandatory Nature of Section 21-A

Justice Patil emphasised that Section 21-A is a special provision within a special law, whereas the CPC is a general procedural statute.

He noted that the section uses mandatory language:

“The petition presented later shall be transferred to the district court in which the earlier petition was presented.”

By contrast, Section 24 CPC uses the permissive term “may.” Therefore, when both provisions are invoked, the special and mandatory provision under the HMA must prevail.

The Court clarified that sub-section (3) of Section 21-A empowers the High Court or the appropriate authority under the CPC to execute such a transfer once the conditions under Section 21-A(1) and (2) are met.

2. The Scope of Section 24 CPC

• Section 24 is a general power enabling transfer “at any stage” of proceedings for reasons of convenience or expediency.
• However, where a special law prescribes a specific mechanism, such as Section 21-A for matrimonial petitions, that mechanism takes precedence.
• Thus, while Section 24 allows consideration of convenience, it cannot override a statutory mandate enacted to avoid conflicting decrees between the same parties.

3. Applicability of Precedents

(a) N.C.V. Aishwarya v. A.S. Saravana Karthik Sha (2022)

The Supreme Court had held that, in transfer petitions under Section 24 CPC, the wife’s convenience is paramount given socio-economic realities.

However, Justice Patil noted that the Aishwarya case did not involve Section 21-A; it concerned proceedings under Sections 9 and 12 HMA and Section 125 CrPC.

Hence, its ratio could not be extended to cases explicitly covered by Section 21-A.

(b) Yogini Umesh Chivhane v. Umesh Uttamrao Chivhane (2004)

The Single-Judge decision allowed transfer in favour of the wife when both petitions were filed a day apart, relying on the Supreme Court’s ruling in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry (1981 2 SCC 646).

But Guda Vijayalakshmi was decided before the 1976 amendment, giving the Supreme Court wide powers under Section 25 CPC, and the High Court held that its observations had limited applicability in the present statutory scheme.

The 1976 amendment to CPC came after the enactment of the HMA 1955, making the interplay between Section 21-A and Section 25 (SC’s transfer powers) unique. Therefore, the older judgments could not dilute the mandatory force of Section 21-A.

4. Balancing Convenience and Statutory Duty

The Court acknowledged that matrimonial disputes often require a sensitive approach to the wife’s convenience. However, when the statute explicitly provides a transfer rule, convenience cannot override statutory command.

Moreover, in this case, the distance between Kalyan and Bandra was about 50 km, manageable by local transport within the Mumbai Metropolitan Region.

To address the wife’s financial concerns, the husband voluntarily agreed to pay ₹2,500 per hearing towards her travel expenses, and the Court directed him to do so in advance. Additionally, she was allowed to attend hearings via video conferencing when permitted by the trial judge.

Decision and Directions

The High Court rejected the wife’s transfer application (MCA 124/2024) and allowed the husband’s application (MCA 415/2024) with the following directions:

1. Transfer of Petition: The Civil Judge (Senior Division), Kalyan, shall transfer HMP No. 2159 of 2022 to the Family Court at Bandra, Mumbai, within four weeks.
2. Joint Hearing: The transferred case shall be tagged with Marriage Petition No. 3540 of 2022 pending before the Family Court, Bandra, and both matters shall be heard together by the same judge to ensure consistency.
3. Expedited Trial: The Family Court was directed to expedite the hearing of both petitions.
4. Travel Expenses: The husband must pay ₹2,500 per date of hearing to the wife 48 hours in advance, covering her travel to Bandra.
5. Virtual Appearance: The wife may appear via video conferencing when permitted, but must attend physically when specifically directed by the Court.
6. Rejection of Interim Relief: The wife’s request to continue ad-interim relief for four weeks was denied.

Thus, the husband’s plea under Section 21-A HMA was upheld, and the multiplicity of divorce proceedings was resolved in favour of judicial efficiency.

Significance of the Judgment

1. Clarifies Jurisdictional Priority in Cross-Petitions: The decision eliminates ambiguity regarding which court retains jurisdiction when both spouses file for divorce independently. The “first-in-time” rule now stands judicially reaffirmed.
2. Streamlines Matrimonial Litigation: By insisting on a joint trial before one court, the ruling promotes efficiency, avoids duplication of evidence, and reduces emotional and financial strain on both parties.
3. Encourages Uniform Interpretation Across States: Since matrimonial disputes often involve parties living in different cities or states, the judgment provides persuasive authority for other High Courts to follow Section 21-A strictly.
4. Protects Judicial Consistency: Conflicting decrees (e.g., one court granting divorce, another dismissing it) would undermine faith in the justice system. The judgment preempts such inconsistencies.

Conclusion

Bombay High Court’s decision in Suprabha Nitesh Patil v. Nitesh Gajanan Patil is a significant reaffirmation of the mandatory nature of Section 21-A of the Hindu Marriage Act, 1955. The Court prioritised statutory certainty and judicial efficiency over subjective considerations of convenience, while still ensuring fairness through travel compensation and virtual participation.

By mandating that the later-filed divorce petition be transferred to the court where the first was instituted, the judgment strengthens procedural discipline in matrimonial litigation. It harmonises the interplay between the Hindu Marriage Act and the Code of Civil Procedure, ensuring that the principle of one marriage–one jurisdiction is firmly upheld.

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