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Sunday, March 19, 2017

We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate. 19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled “Harish Nagam vs. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL original JURISDICTION

                 Transfer petition (CIVIL) NO. 1912 OF 2014


Krishna Veni Nagam                                 …PETITIONER

                                   VERSUS

Harish nagam                                            ...RESPONDENT

                               J U D G M E N T


ADARSH KUMAR GOEL, J

1.     This  transfer  petition  has  been  filed  for  transfer   of   Case
No.179A/2013 u/s 13 of  the  Hindu  Marriage  Act,  1955  (the  Act)  titled
“Harish Nagam  vs.  Krishna Veni Nagam” pending on the file of II  Presiding
Judge,  Family  Court,  Jabalpur,  Madhya  Pradesh  to  the   Family   Court
Hyderabad, Andhra Pradesh.
2.    Case of the petitioner-wife is that she was married to the respondent-
husband in the year 2008 at Kukatpally, Hyderabad.  She was blessed  with  a
girl child in 2009.  While living in her in-law’s  house  at  Jabalpur,  she
was ill-treated.  She was subjected to mental  and  physical  torture.   She
suffered injury on her spinal cord.  She left the matrimonial home in  2012.


3.    The respondent-husband filed application for restitution  of  conjugal
rights which was  later  on  got  dismissed  as  withdrawn.   Thereafter,  a
divorce petition has been filed at Jabalpur while the petitioner  has  filed
a domestic violence case at Hyderabad.   Since  the  petitioner-wife,  along
with her minor daughter, is living with her parents,  she  cannot  undertake
long journey and contest the  proceedings  at  Jabalpur  by  neglecting  her
minor child.  She also  apprehends  threat  to  her  security  in  attending
proceedings at Jabalpur.
4.    On 7th January, 2015, notice was issued and stay  of  proceedings  was
granted. The matter has been pending in this Court for more than two  years.


5.    On 9th  January,  2017  when  the  matter  came-up  for  hearing,  the
following order was passed:
“This petition is filed under Section 25 of  the  Code  of  Civil  Procedure
seeking transfer of proceedings initiated by the  respondent  under  Section
13 of the Hindu Marriage Act at Jabalpur. According to the  petitioner,  who
is the wife of the respondent, she will face acute  hardship  in  contesting
the proceedings at Jabalpur as she is  living  at  Hyderabad.  The  marriage
took place at  Hyderabad.  The  petitioner  has  to  look  after  her  minor
daughter who is living with her.
Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of  the
present  nature  could  be  filed  at   the  place  where  the  marriage  is
solemnized or the respondent,  at  the  time  of  the  presentation  of  the
petition, resides  or  where  the  parties  to  the  marriage  last  resided
together or where the wife is residing on the date of  the  presentation  of
the petition, in case she is the petitioner or  in  certain  situations  (as
stipulated in clause iv) where the petitioner resides.
This Court is flooded with petitions of this nature  and  having  regard  to
the convenience of the wife transfer is normally allowed.  However,  in  the
process the litigants have to travel to this Court and spend on  litigation.
Question is whether this can be avoided?
We are of the view that if orders are  to  be  passed  in  every  individual
petition, this causes great hardship to the litigants who have  to  come  to
this Court. Moreover in this process,  the  matrimonial  matters  which  are
required to be dealt with expeditiously are delayed.
In these circumstances, we are prima facie of  the  view  that  we  need  to
consider whether we could pass a general order to the effect  that  in  case
where husband files matrimonial proceedings at place  where  wife  does  not
reside, the court concerned should  entertain  such  petition  only  on  the
condition that the husband makes appropriate deposit to  bear  the  expenses
of the wife as may be determined by the  Court.  The  Court  may  also  pass
orders from time to time for further deposit to ensure that the wife is  not
handicapped to defend the proceedings. In other cases, the husband may  take
proceedings before the Court in whose jurisdiction the  wife  resides  which
may lessen inconvenience to the parties and avoid delay.  Any  other  option
to remedy the situation can also be considered.
However, before passing a final order, we  consider  it  necessary  to  hear
learned Attorney General who may depute some  law  officer  to  assist  this
Court.
List the matter on 31st January, 2017.
We also request Mr. C.A. Sundaram, Senior Advocate to assist this  Court  as
amicus curiae. A set of papers may be furnished to the amicus.”
                                                            (Emphasis added)

6.    Thus, the question is whether an order can be passed so as to  provide
a better alternative to each individual being required to move this Court.

7.    We have already noted that large number of transfer petitions  of  the
present nature are being filed in this  Court  and  are  being  mechanically
allowed.  Similar observation was made by this Court more than 10 years  ago
in Anindita Das v. Srijit  Das[1]   “…On  an  average  at  least  10  to  15
transfer petitions are on board of each court on each  admission  day.”   It
has also been observed in a number of cases that  in  absence  of  any  male
member being available to accompany the wife who  is  party  to  matrimonial
proceedings to a different place, it may render it “expedient  for  ends  of
justice” to transfer proceedings[2].

8.    Of course in some cases, it was observed that instead  of  proceedings
being transferred, the husband  should  pay  travel,  lodging  and  boarding
expenses of the wife and/or person accompanying for each  hearing[3].   This
trend has also  been  followed  in  other  matrimonial  disputes,  including
guardianship dispute, etc.[4]

9.    Spirit behind the orders  of  this  Court  in  allowing  the  transfer
petitions filed by wives being almost mechanically  allowing  is  that  they
are not denied justice on account  of  their  inability  to  participate  in
proceedings instituted at a different place on account of difficulty  either
on account of financial or physical  hardship.   Our  Constitutional  scheme
provides for guaranteeing equal access to justice[5], power of the State  to
make special provisions for women and children[6] and  duty  to  uphold  the
dignity of women[7].  Various steps have been taken in this direction[8].

10.   As noted in the Order dated 9th January, 2017  quoted  above,  Section
19 of the Act permits proceedings to be filed not only at a place where  the
wife resides but also at place where marriage is  solemnized  or  the  place
where the parties  last  resided  together.    It  is  mostly  in  the  said
situations that the wife has hardship in  contesting  proceedings.   At  the
same  time,  under  the  law  the  husband  is  legally  entitled  to   file
proceedings  at  such  places.   Territorial  jurisdiction   of   court   is
statutorily laid down in C.P.C. or other concerned statutes.

11.   Accordingly, we have heard Shri C.A. Sundaram, learned senior  counsel
as amicus curiae.  Learned amicus has suggested that Section 19 of  the  Act
should be interpreted to mean that the jurisdiction at the place other  than
where wife resides being available only at the option of the  wife  or  that
such jurisdiction will be available in exceptional cases 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.   Even
though we are unable to give  such  interpretation  in  the  face  of  plain
language of statute to the contrary and it is for the  legislature  to  make
such suitable amendment as may be considered  necessary,  we  are  certainly
inclined to issue directions in the interest of justice consistent with  the
statute.

12.   Mr. Nadkarni, learned Addl. Solicitor General has  suggested  that  it
will be appropriate to give some  directions  to  meet  the  situation.   He
submitted that paramount consideration in dealing with the  issue  ought  to
be the interest of justice and not mere convenience of the  parties.   Thus,
where husband files a petition at a place away from  the  residence  of  the
wife, the husband can be required to bear travel and incidental expenses  of
the wife, if it is so considered appropriate in  the  interest  of  justice.
At the same time, if the  husband  has  genuine  difficulty  in  making  the
deposit, proceedings can be conducted by video conferencing.  At  least  one
court room in every district court ought  to  be  equipped  with  the  video
conferencing facility.  The interest of the minor child has also to be  kept
in mind along with the interest of the senior citizens  whose  interest  may
be affected by one of the parties  being  required  to  undertake  trips  to
distant places to face the proceedings.  Protracted litigation ought  to  be
avoided  by  better  management  and  coordination   so   that   number   of
adjournments can be reduced.

13.   We have considered the above suggestions.  In  this  respect,  we  may
also refer to the doctrine of  forum non conveniens which can be applied  in
matrimonial proceedings for advancing interest of justice.  Under  the  said
doctrine, the court exercises its inherent jurisdiction to stay  proceedings
at a forum which is considered not to be convenient and there is  any  other
forum which is considered to be more convenient for the interest of all  the
parties at the ends of justice.  In  Modi  Entertainment  Network  and  anr.
v.  W.S.G. Cricket Pte. Ltd.[9]  this Court observed:
“19. In Spiliada  Maritime  [10]case  the  House  of  Lords  laid  down  the
following principle:
      “The fundamental principle applicable to  both  the  stay  of  English
proceedings on the ground that some other forum was  the  appropriate  forum
and also the grant of leave to serve proceedings  out  of  the  jurisdiction
was that the court would choose that forum in which the case could be  tried
more suitably for the interest of all  the  parties  and  for  the  ends  of
justice.”
The criteria to determine which  was  a  more  appropriate  forum,  for  the
purpose of ordering stay of the suit, the court would look  for  that  forum
with which the action had the most real and substantial connection in  terms
of convenience or expense, availability of witnesses, the law governing  the
relevant transaction and the places where the parties resided or carried  on
business.  If the court concluded that there was no  other  available  forum
which was more appropriate than the English court, it would normally  refuse
a stay.  If, however, the court  concluded  that  there  was  another  forum
which was prima facie more appropriate, the court  would  normally  grant  a
stay unless there were circumstances militating  against  a  stay.   It  was
noted that as the dispute concerning the contract in which  the  proper  law
was English law, it meant that England was the appropriate  forum  in  which
the case could be more suitably tried.”

      Though these observations have been made in the  context  of  granting
anti suit injunction, the  principle  can  be  followed  in  regulating  the
exercise of jurisdiction of the court where proceedings are instituted.   In
a civil proceeding, the plaintiff is the dominus litis but if more than  one
court has jurisdiction, court can determine which is  the  convenient  forum
and lay down conditions in the interest of  justice  subject  to  which  its
jurisdiction may be availed[11].

14.   One cannot ignore the problem faced by a husband  if  proceedings  are
transferred on account of genuine  difficulties  faced  by  the  wife.   The
husband may find it difficult to contest proceedings at  a  place  which  is
convenient to the wife.  Thus, transfer is not always a solution  acceptable
to both the parties.  It may be appropriate  that  available  technology  of
video conferencing is used where both the parties have equal difficulty  and
there is no place which is convenient to both the  parties.   We  understand
that in every district in the country video conferencing is  now  available.
In any case, wherever such facility is  available,  it  ought  to  be  fully
utilized and all the High Courts ought to issue  appropriate  administrative
instructions to regulate the use of video conferencing for certain  category
of cases.  Matrimonial cases  where  one  of  the  parties  resides  outside
court’s jurisdiction is one of such categories.  Wherever one  or  both  the
parties make a request for use  of  video  conference,  proceedings  may  be
conducted on video conferencing, obviating the needs of the party to  appear
in person.  In several cases, this Court has directed recording of  evidence
by video conferencing[12].

15.   The other difficulty faced by the  parties  living  beyond  the  local
jurisdiction of the court is ignorance about availability of suitable  legal
services.  Legal Aid Committee of every district  ought  to  make  available
selected panel of advocates whose discipline and  quality  can  be  suitably
regulated and who are ready to provide legal aid at a specified  fee.   Such
panels ought to be notified on the websites of the District  Legal  Services
Authorities/State  Legal  Services   Authorities/National   Legal   Services
Authority.  This may enhance access to justice consistent with  Article  39A
of the Constitution.

16.   The advancement of technology ought to be utilized  also  for  service
on parties or receiving communication  from  the  parties.   Every  district
court must have at least one e-mail  ID.   Administrative  instructions  for
directions can be issued to  permit  the  litigants  to  access  the  court,
especially when litigant is located outside the local  jurisdiction  of  the
Court.  A designated  officer/manager  of  a  district  court  may  suitably
respond to such e-mail in the manner permitted  as  per  the  administrative
instructions.   Similarly, a manager/ information officer in every  district
court may be accessible on a notified telephone  during  notified  hours  as
per the instructions.  These steps may, to some extent,  take  care  of  the
problems of the litigants.  These suggestions  may  need  attention  of  the
High Courts.

17.   We are thus of  the  view  that  it  is  necessary  to  issue  certain
directions which may provide alternative to seeking transfer of  proceedings
on account of inability of a party to contest proceedings at  a  place  away
from their ordinary residence on the ground  that  if  proceedings  are  not
transferred it will result in denial of justice.

18.   We, therefore, direct that in matrimonial or  custody  matters  or  in
proceedings between parties  to  a  marriage  or  arising  out  of  disputes
between parties to  a  marriage,  wherever  the  defendants/respondents  are
located outside the jurisdiction of the court, the court  where  proceedings
are instituted, may examine whether it is in  the  interest  of  justice  to
incorporate   any   safeguards    for    ensuring    that    summoning    of
defendant/respondent  does  not  result  in  denial   of   justice.    Order
incorporating such safeguards may be  sent  along  with  the  summons.   The
safeguards can be:-
      i) Availability of video conferencing facility.
      ii) Availability of legal aid service.
iii) Deposit of cost for travel, lodging and boarding in terms of Order  XXV
CPC.
iv)   E-mail address/phone number,  if  any,  at  which  litigant  from  out
station may communicate.

19.   We hope the above arrangement may, to an extent,  reduce  hardship  to
the litigants as noted above in the Order of this Court dated  9th  January,
2017.  However, in the present case since the  matter  is  pending  in  this
Court for about three years, we are satisfied that the prayer  for  transfer
may  be  allowed.  Accordingly,  we  direct   that   proceedings   in   Case
No.179A/2013 under Section 13 of the Act titled “Harish  Nagam  vs.  Krishna
Veni Nagam” pending on  the  file  of  II  Presiding  Judge,  Family  Court,
Jabalpur, Madhya Pradesh  shall  stand  transferred  to  the  Family  Court,
Hyderabad, Andhra Pradesh.  If the parties  seek  mediation  the  transferee
court  may  explore  the  possibility  of  an  amicable  settlement  through
mediation.  It  will  be  open  to  the  transferee  court  to  conduct  the
proceedings or record evidence of the witnesses who are unable to appear  in
court by way of video conferencing.  Records shall be sent  by  court  where
proceedings are pending to the transferee court forthwith.

20.   The  Registry  to  transmit  a  copy  of  this  order  to  the  courts
concerned. A copy of  this  order  be  sent  to  all  the  High  Courts  for
appropriate action.

21.   We place on  record  our  appreciation  for  the  valuable  assistance
rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor  General
and Mr. C.A. Sundaram, learned Senior Advocate.
21.   The transfer petition is disposed of accordingly.



                                                        …………..…………………………….J.
                                                         [ADARSH KUMAR GOEL]




                                                      .….……………………..……………..J.
                                                          [UDAY UMESH LALIT]

NEW DELHI;
MARCH 9, 2017.
-----------------------
[1]   [2] (2006)9 SCC 197
[3]    Mona Aresh Goel  v.  Aresh Satya Goel  (2000)  9  SCC255;  Lalita  A.
Ranga  v.  Ajay Champalal Ranga (2000) 9 SCC 355;  Deepa  v,  Anil  Panicker
 (2000) 9 SCC 441; Archana Rastogi  v.  Rakesh  Rastogi  (2000)10  SCC  350;
Leena Mukherjee  v.  Rabi  Shankar  Mukherjee  (2002)  10  SCC  480;  Neelam
Bhatia  v.  Satbir Singh Bhatia  (2004)  13  SCC  436;  Soma  Choudhury   v.
Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani  v.  Tej Pal (2007) 15  SCC
597; Vandana Sharma  v.  Rakesh Kumar Sharma  (2008)11  SCC  768;  and  Anju
Ohri  v.  Varinder Ohri (2007) 15 SCC 556.
[4]   [5]  Premlata Singh  v.  Rita Singh (2005) 12 SCC 277
[6]      Gana Saraswathi  v.  H. Raghu Prasad  (2000)10 SCC 277
[7]    [8] Article 39A of the Constitution of India, 1950.
[9]    [10] Article 15(3) of the Constitution of India, 1950.
[11]    Article 51-A(e) of the Constitution of India, 1950.


[12]  [13].  In Articles 243-D and 243-T of the Constitution, provision  has
been made for reservation for women  in  Panchayats  and  Municipalities  by
73rd and 74th Amendments.  Need for affirmative action consistent  with  the
Article 15(3) of the Constitution has led to several measures being  adopted
by the legislature, executive as well as the  judiciary  to  advance  gender
justice.  The Convention on the Elimination of All Forms  of  Discrimination
against  Women  (CEDAW)  underlines  the  awareness  of  the   international
commitments on the subject which has  inspired  several  judgments  of  this
Court [Vishaka  v.  State of Rajasthan (1997) 6 SCC 241; Arun Kumar  Agrawal
 v.  National Insurance Co. Ltd. (2010) 9 SCC 218; Charu Khurana  v.   Union
of India (2015)1 SCC 192; Prakash  v.   Phulavati  (2016)2  SCC  36;  Danial
Latifi  v.  Union of India (2001) 7  SCC  740;  Voluntary  Health  Assn.  of
Punjab  v.  Union of India (2013) 4 SCC 1 and; Mackinnon   Mackenzie  &  Co.
Ltd.  v.  Audrey D’Costa (1987) 2 SCC 469.  It  was  observed  in  Voluntary
Health Assn.  as under:

       “20. It would not be an exaggeration to say that a society that  does
not respect its women cannot be treated to be civilised. In the  first  part
of the last century Swami Vivekanand had said:

      ‘Just as a bird could not fly with one wing only, a nation  would  not
march forward if the women are left behind.’”


[14]  [15] (2003)4 SCC 341
[16]  [17] Spiliada Maritime Corpn.  V.  Cansulex Ltd.  (1986)3 All ER 843
[18]  [19] Kusum Ingots & Alloys Ltd.  v.  Union of India and anr.  (2004)
6 SCC 254 para 30
[20]  [21] State of Maharashtra  etc. v.  Dr. Praful B. Desai etc. (2003)  4
 SCC 601; Kalyan Chandra Sarkar  v.  Rajesh Ranjan  alias  Pappu  Yadav  and
anr. (2005) 3 SCC 284; Budhadev Karmaskar (4)  v.    State  of  West  Bengal
(2011) 10 SCC 283; Malthesh Gudda Pooja  v.  State  of  Karnataka  and  ors.
(2011) 15 SCC 330

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