29 Jan 2121

A suit cannot be transferred at the final stage of proceedings - Supreme Court of India

Case : Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Pravinchandra Shah Transfer Petition (Civil) No. 2344 of 2019

Court : Supreme Court of India

Bench : Justice V. Ramasubramanian

Decided on : 29 Jan 2121

Relevant Statutes

Section 9 of the Hindu Marriage Act, 1955

Brief Facts and Procedural History

1. The petitioner (wife) and the respondent (husband) got married on 28.02.2002. Two children were born in wedlock on 31.08.2007 and 27.01.2011. Disputes arose between them.

2. The respondent filed a petition in 2016 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Court of Senior Civil Judge. The petition was transferred to the Family Court.

3. The petitioner earlier had filed a transfer petition seeking transfer of the said proceeding to a competent court in Mumbai. But it was dismissed by the Honourable Supreme Court by an order dated 19.04.2016.

4. After three years of the dismissal of the said Transfer Petition, the petitioner again approached the Honourable Supreme Court with the present transfer of the suit to a competent Court in Mumbai on the ground of change of circumstances warranting a fresh look.

6. The following change of circumstances was pleaded:

a. Her mother died in 2017 leaving an emotional vacuum and also making it impossible to leave two minor daughters in Mumbai to attend the hearings at Palanpur.

b. She applied to the Family Court to direct the respondent to provide the expenditure for her travel but was unsuccessful.

c. The Family Court had made it difficult for her to defend the case by listing it for hearing on 2 to 3 occasions every month and imposing penalties upon her whenever a request for adjournment was sought or when the Legal Aid lawyer appointed on her behalf did not attend the Court.

Issue of the Case

Whether the petitioner is entitled to transfer the family suit to a competent Court in Mumbai?

The Observations of the Court

The Honourable Supreme Court observed that:

1. The dismissal of a petition for transfer may not operate as res judicata when a fresh petition is filed on a change of circumstances.

2. The first transfer petition was dismissed in limine without even notice being ordered to the respondent. The present petition for transfer could not be opposed solely on the ground that the earlier petition was dismissed.

3. The pleadings in the proceedings for restitution of conjugal rights had been completed. The examination-in-chief and cross-examination of the respondent had also been done.

4. The petitioner had filed an affidavit before the Family Court instead of examination-in-chief. However, the Family Court discarded the evidence of the petitioner and struck off her right of evidence by an order. Thereafter the petitioner came up with the Transfer Petition. The petitioner’s mother also passed away in 2017 and she was unable to defend herself effectively in the Family Court where the proceedings were pending.

5. The social and financial hardship pleaded by the petitioner deserved favourable consideration; however when a case is at its final stage, it is not appropriate to order the transfer, as it may derail the entire process.

6. The expenses for her travel from Mumbai to Palanpur and the evidence of her side getting rejected were the two major grievances of the petitioner. The case could reach its logical end in the same court after addressing the said issues.

The Decision Held by the Court

The Honourable Supreme Court rejected the Transfer Petition and ordered that:

1. The petitioner could move an application for reopening of her evidence before the Family Court. The application may be allowed to be filed online if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having travelled.

2. The Family Court may take a lenient view on the said application and have the evidence on the side of the petitioner restored. Thereafter the case may be posted for the cross-examination of the petitioner. For facilitating the cross-examination of the petitioner by the counsel for the respondent-husband, the Court may be granted a firm date. On the date so fixed, the petitioner shall appear before the Family Court.

3. The respondent shall ensure that the cross-examination of the petitioner is carried out without fail by the counsel for the respondent. No request for an adjournment on behalf of the respondent shall be allowed.

4. On all other occasions, the petitioner may be permitted by the Family Court to be represented by a counsel without being present. If a Video Conferencing facility is available, the petitioner may be granted the said facility.

5. On every occasion when the family Court wants the physical presence of the petitioner, the respondent shall pay a sum of ₹10,000/- to the petitioner, towards expenses for travel and stay. If the respondent fails to pay, the petitioner will be at liberty to approach the Honourable Supreme Court.

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