This article is written by Vaishnavi Choudhary, 1st Year LLB Student of Intellectual Property Law at RGSOIPL, IIT Kharagpur.
This article has been published by Sneha Mahawar.
The petition filed in this case is regarding the transfer of a divorce petition filed by the respondent-husband in the Family Court of Jabalpur. The petitioner–wife has asked for the transfer of proceedings from the Family Court of Jabalpur to the Family Court of Hyderabad. We discuss herein further, on what grounds the plea for the transfer can be accepted.
Facts of the case
- The couple, Krishna Veni Nagam and Harish Nagam got married in 2008 at Kukatpally, Hyderabad. They were blessed with a girl child in 2009.
- In 2012, the petitioner-wife left her matrimonial home in Jabalpur, where she was subjected to mental and physical torture. She even suffered an injury to the spinal cord.
- Upon this, the respondent-husband applied for the restitution of conjugal rights which was later dismissed as withdrawn.
- The petitioner–wife filed a domestic violence case in Hyderabad, while the husband filed a divorce petition in Jabalpur.
- The petitioner–wife claimed that she stayed with her parents and a minor daughter in Hyderabad and it is difficult for her to travel long distances and attend the proceedings at the Family Court of Jabalpur, where the divorce petition was filed.
- Moreover, she sensed a threat to her security in attending proceedings at Jabalpur.
- Therefore, a transfer petition was filed by the petitioner-wife for the transfer of the petition from the Family Court, Jabalpur, Madhya Pradesh to the Family Court Hyderabad, Andhra Pradesh.
- What are the acceptable grounds for a transfer petition to be filed in a matrimonial matter?
- Can video conferencing be used in conducting matrimonial proceedings as an alternative to transferring petitions through jurisdictions?
This particular issue of jurisdiction has come up quite often in matrimonial matters. In most cases, the doctrine of forum non-conveniens was applied by the courts to take a decision, which allows the courts to dismiss a case where another court, or forum, is much better suited to hear the case.
However, the decisions of the courts in this matter have evolved. This case forms a part of one such decision wherein the convenience of the parties plays a major role in the rulings. The history of judgments in this particular area has gone from giving preference to the wife’s convenience in deciding the jurisdiction of the proceedings, to making the husband deposit for the expenses of the wife’s travel and stay during the time of proceedings, to deciding that no burden should be imposed on either party for the expenses during the proceedings, to utilizing the facility of video – conferencing for conducting the proceedings to make it equally convenient for both parties.
Summary of the arguments
The petitioner–wife, who was the respondent in the case of the divorce petition claimed that since it is physically difficult as well as unsafe for her to attend the proceedings of the concerning divorce petition, a transfer of the divorce petition matter to the nearest court to the place where she lived that is, in the Hyderabad, should be granted by the court.
The two statutes under which the petitioner side has based their case are Section 19 of the Hindu Marriage Act and Section 25 of the Code of Civil Procedure Code.
It was argued by the petitioner that under Section 19 of the Hindu Marriage Act which gives the preference to the respondent, or the wife in case she is facing hardship in traveling to the place of filing, in case of deciding the jurisdiction of the petition, the divorce petition should have been filed at the location where the respondent-wife resided at the time of the filing, which is at Hyderabad.
The petitioner also argued that under Section 25 of the Code of Civil Procedure transfer of such proceedings can be initiated.
The honorable Supreme Court in this case allowed the transfer of the petition from Family Court, Jabalpur to Family Court, Hyderabad looking at the pendency and the situation in this case. However, the Court set a few checks on the circumstances under which such transfer petitions should be allowed and also gave alternatives for the same.
The court was primarily of the view that entertaining such transfer petitions for all the cases which come to the court, will cause a delay in the process of justice which were otherwise to be dealt with expeditiously. The court referred to the judgment in Anindita Das v. Srijit Das, 2006, in which it was observed that default and hidden bias towards the wives in deciding the jurisdiction of filing the petition, was taken advantage of by women even in the case of no genuine issues present.
As an exemplar taken from these earlier cases, the amicus curiae, in this case, learned senior Counsel Shri C. A Sundaram suggested that Section 19 of the Hindu Marriage Act should be interpreted in a way such that the transfer of petitions in matrimonial cases to a place other than where the wife is residing, should be allowed only under situations where “..the wife is employed and the husband is unemployed or where the husband suffers from physical or other handicap or is looking after the minor child”.
The court further observed that unless otherwise, in a case where the husband filed a petition in a place away from the wife’s place of residence, he should pay for the expenses of travel and stay in a 3-star hotel for the wife and one individual accompanying her to the place of the proceedings. In case, the husband has genuine problems in making the deposit, proceedings can be conducted through video-conferencing.
The understanding of the court in this particular case said that the interest of justice ought to be kept in mind at all times, and the mere convenience of the parties cannot be the deciding factor.
In this decision, Supreme Court has come up with some directions for various authorities with the power to make the process of delivering justice smoother and hassle-free:
- The Supreme Court asked all High Courts to issue appropriate administrative instructions to maintain and regulate the use of video conferencing for a certain category of cases.
- It also directed the Legal Aid Committee of every district to make available a selected panel of advocates who are ready to provide service as a part of legal aid.
- Every district court must have at least one e-mail id. A designated district court officer may suitably respond to e-mails from the litigants located outside the court’s local jurisdiction, regarding any administrative instructions.
- Similarly, an information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions.
The Court stated that in cases of matrimonial matters wherein the parties stay outside the jurisdiction of the courts, the courts shall incorporate certain safeguards to avoid denial of justice for either party.
“The safeguards can be:
- Availability of video conferencing facility.
- Availability of legal aid service.
- Deposit of cost for travel, lodging, and boarding in terms of Order XXV Code of Civil Procedure.
- E-mail address/phone number, if any, at which the litigant from our station may communicate.”
The judgment in this particular case posed as a precedent solving the problem of flooding of transfer petitions in matrimonial disputes unlike the other cases regarding the issue till now. In the previous cases that the courts have seen in this matter, the decision has always favored the wives in the sense that the position of the wives in the matter should be made safer and more comfortable. For example, in the cases like Sumita Sing v. Kumar Sanjay, 2002, Rajini Kishor Pardeshi v. Kishor Babulal Pardeshi, 2005, and others, the courts, while deciding the transfer petitions in matrimonial matters, have given more weightage and consideration to the convenience of the female litigants and have allowed the transfer of proceedings taking into consideration their convenience.
However, there have been several cases that have been decided against the video-conferencing methodology, which the honorable Supreme Court has suggested in this particular case, for hearing the proceedings instead of transferring the petition. In the case of Santhini v. Vijay Venkatesh, the court overruled the judgment given in Krishna Veni Nagam v. Harish Nagam saying that the court in any case, under an acceptable procedure, cannot order video-conferencing until and unless there is a joint application from both parties seeking consent by video conferencing. Moreover, the court clearly stated that video conferencing cannot be directed in a transfer petition. Since this was a 3-judge bench as compared to Krishna Veni Nagam v. Harish Nagam which had a 2-judge bench, it set a prevailing law.
In my opinion, this judgment has set a good example for the judges to make decisions in cases of matrimonial petition transfers but has not been given as much importance in future judgments, as much as it should have been. The judgment highlighted two very important points – firstly, that the decision in such cases should be taken gender-neutrally keeping in mind the interest of justice of both parties and without giving an unreasonable favor to the wives; secondly, in case a transfer is not possible to the desired jurisdiction, then the court may suggest that the parties go ahead with the proceedings on video-conferencing.
I agree with the judgment on various levels. Firstly, how the cases related to transfer petitions in matrimonial matters are almost mechanical. The courts have, time and again favored the wives in deciding these cases, and they have made sure that it’s convenient for the wives to attend the proceedings. It is observed that even to date, the precedent of Krishna Veni Nagam v. Harish Nagam is not followed very satisfactorily in the cases of transfer petitions. However, it has been observed, that many female litigants take advantage of the fact that they are given priority in deciding the jurisdiction of the proceedings. Therefore, the courts need to take into consideration the hardships faced by the husbands as well, to make just decisions. Both parties should be given equal preferences based on the fair evaluation of their physical, economical, and emotional distress. This is important to make sure that the husband doesn’t bear all the inconveniences – monetary as well as physical, on a default basis.
Secondly, the decision of the Supreme Court, in this case, was a wise decision considering the number of transfer petitions flooding the courts in matters of matrimonial discords. However, it was later on overruled in Santhini v. Vijay Venkatesh. In addition to maintaining a speedy approach to resolving these conflicts, it also aids in advancing the interest of justice by not burdening either party with traveling or aiding the travel of the other.
In the recent case of Anjali Bramhawar Chauhan v. Navin Chauhan, which was decided during the time of the Covid-19 pandemic, it was decided that, in case of a transfer petition, proceedings can be held through video-conferencing. This is a good alternative to physical proceedings in a situation like today, where our courts have a multitude of cases to deal with. Moreover, as every field of society is following the smart approach with the help of technological advancements, it is good to incorporate those advancements in legal proceedings as well. The only thing is that proper guidelines should be followed during the virtual proceedings and it should be made sure that it does not hamper the process of justice delivery.
Citizens are losing their faith in the judiciary as courts sit on a ticking time bomb of pending cases. Experience has shown that other courts, besides the Supreme Court and several High Courts, are unable to hear a significant proportion of cases online. While dispensing justice based on facts, the Supreme Court’s directives must be gender-neutral in intent. If it is determined that the Supreme Court’s power was used to harass, it will be penalized and a divorce will be granted. It is wise to remove any barriers that prevent the courts from dispensing justice in a gender-neutral manner in an era where marriage and divorce occur at the speed of light.
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