Sunday, December 24, 2017

Transfer petition in favor of the wife

What is a Transfer Petition?

Section 25 of the Code of Civil Procedure enables the Supreme Court to transfer any Case, appeal or other proceedings from High Court or other civil court in one State to a High Court or other civil court in any other State. This power can be and generally is exercised by the Supreme Court of India if the matter suffices the need for justice. Hence wide powers are given to the Supreme Court to order a transfer if it feels that the ends of justice so require.

Convenience of the Wife as an argument

Although as a common trend, the Supreme Court used to take a soft side towards the transfer petition filed by the wife. As in the cases given below, the convenience of the wife was a prominent point to be taken into consideration. However, nowadays, it is to be noted that the trend of feminism in Supreme Court decisions is such that the decisions are purely based on logical arguments. The “soft side for women”  is not anymore visible in the later supreme court decisions. That being said, it does not mean that the courts do not consider convenience of the wife as an argument.

For example,

In the case of Smt. Neeraja Gupta Vs. Dr. Rajesh Gupta, 2002(1) HLR 273, this Court allowed the transfer application filed by the wife but from Jind to Mansa instead of from Jind to Abohar on the ground that convenience of the wife has to be looked into.

In the case of Boby Rani alias Babita Vs. Suresh Kumar, 2011(1) HLR 284, this Court has allowed the transfer petition on the ground that convenience of the wife is to be seen. In this case wife is 70% handicapped.

However, in the case of Veena v. Vinay Kumar, 1992 (1) HLR 380, the Hon’ble Punjab & Haryana High Court dismissed the application under Section 24 of CPC instituted by the wife for transfer of divorce petition on the ground that she pleaded for her convenience alone and failed to make out a case for transfer of proceedings at Jagadhri to Ferozepur in terms of Secton 24 CPC. The court ruled that the convenience of one party to the litigation i.e. wife alone, cannot be accepted as of rule. The Court is required to adopt a balanced view of convenience of both the parties, of course may be with some premium in favour of the wife.

In the case of Mona Aresh Goel vs Aresh Satya Goel on 21 March, 2000, where in the transfer petition was filed by the wife to transfer the divorce proceedings taken by the husband in Bombay to Delhi, where she stayed with her parents. The transfer petition avers that the wife had no independent income and that her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. She averred that she is twenty-two years old and cannot travel to and stay in Bombay alone for, there is no one in Bombay with whom she can stay. Hence the court allowed such a petition in these circumstances.

A very poignant and logical judgment was observed in Premlata Singh v. Rita Singh  wherein this Court had not transferred the proceedings but directed the husband to pay for travelling, lodging and boarding expenses of the wife and/or person accompanying her for each hearing. The said principle was also followed in Gana Saraswathi v. H. Raghu Prasad.

In the case of Santhini vs Vijaya Venketesh on 9 October, 2017, the court cited various cases. The court before reaching the final conclusions made a reference to the following cases, it made apt to refer to the decisions that have been noted in Krishna Veni Nagam. In Mona Aresh Goel ( as discussed above) the three-Judge Bench was dealing with the transfer of the matrimonial proceedings for divorce that was instituted by the husband in Bombay. The prayer of the wife was to transfer the case from Bombay to Delhi. The averment was made that the wife had no independent income and her parents were not in a position to bear the expenses of her travel from Delhi to Bombay to contest the divorce proceedings. That apart, various inconveniences were set forth and the husband chose not to appear in the Transfer Petition. The Court, considering the difficulties of the wife, transferred the case from Bombay to Delhi. In Lalita A. Ranga, the Court, taking note of the fact that the husband had not appeared and further appreciating the facts and circumstances of the case, thought it appropriate to transfer the petition so that the wife could contest the proceedings. Be it noted, the wife had a small child and she was at Jaipur and it was thought that it would be difficult for her to go to Bombay to contest the proceedings from time to time. In Deepa’s case, the stand of the wife was that she was unemployed and had no source of income and, on that basis, the prayer of transfer was allowed. In Archana Rastogi, the Court entertained the plea of transfer and held that the prayer for transfer of matrimonial proceedings taken by the husband in the Court of District Judge, Chandigarh to the Court of District Judge, Delhi deserved acceptance and, accordingly, transferred the case. Similarly, in Leena Mukherjee, the prayer for transfer was allowed. In Neelam Bhatia, the Court declined to transfer the case and directed the husband to bear the to-and-fro travelling expenses of the wife and one person accompanying her by train whenever she actually appeared before the Court. In Soma Choudhury, taking into consideration the difficulties of the wife, the proceedings for divorce were transferred from the Court of District Judge, South Tripura, Udaipur (Tripura) to the Family Court at Alipore (West Bengal). In Anju Ohri case, the Court, on the foundation of the convenience of the parties and the interest of justice, allowed the transfer petition preferred by the wife. In Vandana Sharma, the Court, taking note of the fact that the wife had two minor daughters and appreciating the difficulty on the said bedrock, thought it appropriate to transfer the case and, accordingly, so directed.

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