Section 40A of The Special Marriage Act, 1954
1[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 decree for judicial separation under section 23, or for 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.
Summary
- Section 40A of the 1954 Act handles cases where both husband and wife file separate petitions for separation or divorce.
- It applies to petitions praying for judicial separation under Section 23 or for divorce under Section 27.
- If both petitions are presented to the same district court, that court must try and hear them together.
- If they are filed in different district courts, the petition filed later must be transferred to the court of the earlier petition.
- The authority competent under the Code of Civil Procedure, 1908, must execute the transfer of the later petition.
Practical examples
FAQ
1. What happens if both spouses file separate divorce petitions under Section 40A of the Special Marriage Act, 1954?
Under Section 40A of the Special Marriage Act, 1954, if the petitions are in different courts, the later petition will be transferred to the court where the earlier petition was filed, and both will be tried together.
2. Can petitions in different states be combined under Section 40A of the Special Marriage Act, 1954?
Yes, under Section 40A of the Special Marriage Act, 1954, even if the later petition is filed in a different district court in another state, it must be transferred to the court of the earlier petition.
3. Who has the authority to transfer a petition under Section 40A of the Special Marriage Act, 1954?
Under Section 40A of the Special Marriage Act, 1954, the court or the Government competent to transfer cases under the Code of Civil Procedure, 1908, will execute the transfer.
4. Which petitions are covered under the transfer rules of Section 40A of the Special Marriage Act, 1954?
Under Section 40A of the Special Marriage Act, 1954, the rules apply to petitions praying for judicial separation under Section 23 or for divorce under Section 27.
Test yourself
Q1.Under Section 40A of the Special Marriage Act, 1954, if a husband files for divorce in one court, and the wife later files for divorce in a different court, what happens to the later petition?
Q2.Under Section 40A of the Special Marriage Act, 1954, which specific petitions trigger these transfer and joint trial rules?
Q3.Under Section 40A of the Special Marriage Act, 1954, who is competent to transfer a petition from one district court to another?
Q4.Under Section 40A of the Special Marriage Act, 1954, what is the procedure if both husband and wife file petitions in the exact same district court?
Q5.Under Section 40 and Section 40A of the Special Marriage Act, 1954, how does the Code of Civil Procedure, 1908, apply when a spouse seeks to transfer a later-filed divorce petition to the court handling the earlier petition?