Code: Section 40A – Power to Transfer Petitions in Certain Cases
(1) Where—
(a) a petition under this Act has been presented to the district court having jurisdiction, by a party to the marriage praying for a decree for judicial separation under section 23 or for a decree of divorce under section 27, and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 23, or for a decree of divorce under section 27 on any ground, whether in the same district court, or in a different district court, in the same State or in a different State, the petition shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies—
(a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;
(b) If the petitions are presented to different district courts, the petitions 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.
(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
Explanation of Section 40A – Special Marriage Act
Section 40A of the Special Marriage Act (SMA) addresses the process for transferring petitions when multiple divorce or judicial separation petitions have been filed between the same parties, but in different courts or districts.
Key Points:
- Simultaneous Petitions: This section applies when one party to the marriage files a petition for judicial separation or divorce, and later, the other party also files a petition on the same grounds. The petitions can be filed either in the same district court or in different district courts, whether within the same state or across different states.
- Transfer of Petitions:
- Same District Court: If both petitions are filed in the same district court, the court will try both petitions together.
- Different District Courts: If the petitions are filed in different district courts, the later petition will be transferred to the court where the earlier petition was filed. Both petitions will then be heard and disposed of together by that court.
- Transfer Process: The process of transferring petitions between courts is guided by the Code of Civil Procedure, 1908 (CPC). The relevant court or government authority will have the power to transfer the later petition to the court where the earlier petition is pending.
Illustration
Example 1: Filing in Same District Court
If one spouse files for divorce in District Court A under Section 27, and later, the other spouse also files for divorce in the same court, the District Court A will hear and decide both cases together.
Example 2: Filing in Different District Courts
If one spouse files a petition for divorce in District Court A, and the other spouse later files a similar petition in District Court B, the later petition will be transferred to District Court A. Both petitions will then be tried together by District Court A.
Common Questions and Answers on Section 40A SMA
Q1. What happens if two divorce petitions are filed in different courts?
If two divorce petitions are filed in different courts, the later petition will be transferred to the court where the first petition was filed. Both petitions will then be heard and disposed of together.
Q2. Can I request the court to transfer my petition if it has been filed in the wrong district court?
Yes, if your petition is the later one filed in a different district court, it can be transferred to the district court where the earlier petition was filed.
Q3. What is the role of the Code of Civil Procedure, 1908 in the transfer process?
The Code of Civil Procedure, 1908 governs the process of transferring petitions between courts. The court or competent government authority will use the powers under the CPC to transfer petitions from one district court to another.
Conclusion
Section 40A of the Special Marriage Act ensures that petitions related to divorce or judicial separation between the same parties are efficiently handled and resolved by a single court. By providing a clear procedure for transferring petitions, it aims to avoid multiple proceedings in different courts, ensuring consistency and fairness in the judicial process.
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