In TRANSFER PETITION (C) No. 1475 of 2021-SC- Top Court dismisses wife's petition seeking transfer of matrimonial case, refers to precedent highlighting misuse of leniency which is shown by Courts in accepting such petitions by women
Justices Rajesh Bindal & Aravind Kumar [18-04-2023]

Read Judgment:DELMA LUBNA COELHO Vs. EDMOND CLINT FERNANDES 

Tulip Kanth

Chandigarh, April 19, 2023: Not finding the matter to be a fit case for exercise of power under Article 142 of the Constitution of India, the Supreme Court has dismissed a plea of a wife seeking transfer of a matrimonial case from Karnataka to Family Court at Bandra.

The Division Bench of Justice Rajesh Bindal and Justice Aravind Kumar affirmed, “Number of Transfer Petitions are filed in matrimonial cases, primarily by the wives seeking transfer of the matrimonial proceedings initiated by the husband. This Court normally has been accepting the prayer made while showing leniency towards ladies.”

The Top Court also referred to its judgment in Anindita Das v. Srijit Das, wherein it was observed that may be this leniency was being misused by women. Hence, each and every case has to be considered on its own merits.

As per the pleadings, the parties met on Facebook in the month of December, 2019 and they got married in 2020 as per Christian rites and customs. After the marriage, the petitioner was living with the respondent at her matrimonial home at Mangaluru where she was ill-treated, insulted and humiliated by the respondent and his family members. The respondent, in the pretext of giving her a break, booked a one-way ticket for the petitioner and sent her to Mumbai. Thereafter, he disconnected all relations with her.

When the petitioner came back to Mangaluru, she was denied entry in her matrimonial and she lodged a complaint. The Superintendent of Police intervened. Despite repeated requests made by the petitioner, the respondent did not mend his ways. In 2021, she received summons from the Court along with a copy of the divorce petition filed in the Family Court at Mangaluru.

The petitioner-wife had approached the Division Bench seeking transfer of the Matrimonial Case pending before the Family Judge at Mangaluru, Karnataka to the Family Court at Bandra, Mumbai, Maharashtra.

The Bench took note of the fact that the matter was referred to the Supreme Court Mediation Centre. The Order passed by this Court recorded that the efforts of mediation failed. The matter was referred to Maharashtra State Legal Service Authority. 

It was specifically recorded by the Mediator that during four months, several meetings were held with the parties and throughout the petitioner was in Canada and she attended the meetings through Video Conferencing.

In the facts of this case in hand, the petitioner, a permanent resident of Canada, had shifted there in the year 2014 and was working there on a well-paid job, however, came to India for the matrimonial alliance. She had been residing in Mumbai with her parents and stated to be working in ICICI Bank. There is no child born out of the wedlock. As far as the respondent is concerned, he is a doctor by profession and living at Mangaluru, Karnataka. 

Divorce Petition had been filed by the husband at Mangaluru where he resides with his aged parents. Thereafter, the wife filed a petition for restitution of conjugal rights at Mumbai, Maharashtra.

Considering the status of the parties and the fact that it was a petition filed by the wife seeking transfer of case filed by the husband from Mangaluru, Karnataka to Mumbai, Maharashtra,the Bench said, “...in our view no case is made out for transfer of the petition from Mangaluru, Karnataka to Mumbai, Maharashtra. The wife is a permanent resident of Canada. She must be travelling abroad regularly.”

The Bench noted that the petitioner was in Canada throughout the mediation process, there is no child born out of wedlock to be taken care of and both the parties are well educated and engaged in their own jobs and professions. 

The Bench observed that she could travel to Mangaluru to attend the hearing of the case and also seek exemption from appearance whenever required. 

“Though, at present, considering the financial condition of the parties on the basis of material which has come on record, we do not find that any ground is made out for issuing direction to the respondent to pay the expenses to the petitioner for travelling to Mangaluru. However, still in case she feels like seeking reimbursement of expenses, she shall be at liberty to file application before the court concerned, which may be examined on its own merits”, the Top Court asserted.

There was sufficient material on record and the ground on which the marriage was dissolved in exercise of power under Article 142 of the Constitution of India, was irretrievable breakdown of marriage which otherwise is not a ground in the Hindu Marriage Act,1955 for dissolution of marriage, the Bench stated while dismissing the petition.