IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 2344 OF 2019
AMRUTA BEN HIMANSHU KUMAR SHAH … PETITIONER(S)
VERSUS
HIMANSHU KUMAR PRAVINCHANDRA SHAH …RESPONDENT(S)
O R D E R
V. Ramasubramanian, J.
1. The petitioner, who is the wife of the respondent, has come up
with the above petition seeking the transfer of Family Suit No. 33 of
2016 from the Family Court, Banaskantha, Palanpur, Gujarat, to a
competent court in Mumbai, Maharashtra.
2. I have heard Mr. Harsh Desai, learned counsel for the
petitioner and Ms. Ranu Purohit, learned counsel for the
respondent.
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3. The petitioner and the respondent got married on 28.02.2002.
Two children were born in the wedlock on 31.08.2007 and
27.01.2011.
4. Disputes arose, leading to the respondent filing a petition in
HMP No.11 of 2016 on the file of the Court of Senior Civil Judge,
Palanpur, Gujarat, under Section 9 of the Hindu Marriage Act, for
restitution of conjugal rights. The petition was transferred to the
Family Court Banaskantha, Palanpur, Gujarat and renumbered as
Family suit No. 33 of 2016.
5. The petitioner earlier came up with a transfer petition in T.P.
(C) No.615 of 2016 seeking transfer of the said proceeding to a
competent court in Mumbai. But it was dismissed by this Court by
an order date 19.04.2016.
6. After three years of the dismissal of the said Transfer Petition,
the petitioner has come up with the present Transfer Petition on the
ground that there are change of circumstances warranting a fresh
look. The change of circumstances pleaded by the petitioner are:
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(i) that her mother died on 02.02.2017 leaving an emotional
vacuum and also making it impossible to leave two minor
daughter in Mumbai to attend to the hearings at Palanpur;
and
(ii) that even the application filed by her before the Family
Court, Palanpur to direct the respondent to provide the
expenditure for her travel to Palanpur was dismissed and that
the Family Court at Palanpur has also made it difficult for her
to defend the case, by listing the case for hearing on 2 to 3
occasions every month and imposing penalties upon the
petitioner whenever a request for adjournment is sought or
when the Legal Aid lawyer appointed on her behalf did not
attend the Court.
7. The respondent has filed a counter affidavit contending inter
alia that the proceedings for restitution of conjugal rights have
already reached the stage of judgment and that once a request for
transfer got rejected on an earlier occasion, a second petition
cannot be maintained.
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8. But as rightly contended by the learned counsel for the
petitioner, the dismissal of a petition for transfer, may not operate
as res judicata, when a fresh petition is filed on change of
circumstances. The first transfer petition in T.P.(C)No.615 of 2016
was dismissed in limine without even a notice being ordered to the
respondent. The order dated 19.04.2016 dismissing the said
Transfer Petition reads as follows:
“Heard learned counsel for the petitioner.
The transfer petitioner is dismissed.
Application for stay also stands disposed of.”
9. Therefore, the present petition for transfer cannot be opposed
solely on the ground that the earlier petition was dismissed. But at
the same time, the petitioner will have to satisfy the court that there
are change of circumstances and that there are sufficient grounds
made out.
10. It appears that after the first Transfer Petition was dismissed
on 19.04.2016, the pleadings in the proceedings for restitution of
conjugal rights got completed and the respondenthusband, who
was the petitioner before the Family Court examined himself in
chief on 11.07.2017 and 12.07.2017. He was cross examined by the
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counsel for the petitioner herein after more than 17 months, on
21.12.2018.
11. Thereafter the petitioner herein, who was the respondent
before the Family Court filed an affidavit in lieu of examination in
chief on 03.05.2019. However, the Family Court discarded the
evidence of the petitioner herein and struck off her right of evidence
by an order 22.07.2019. It is only thereafter that the petitioner has
come up with the above Transfer Petition. The petitioner’s mother
also passed away in 2017 and she was obviously unable to defend
herself effectively in the court where the proceedings are pending.
12. While the hardship, both social and financial, pleaded by the
petitioner deserves favourable consideration, the transfer of the
case at this stage of the proceeding may not be appropriate. As seen
from the print out of the history of the case, downloaded from the
website of the Family Court, Palanpur, the case was posted for final
arguments on 02.08.2019, 14.08.2019, 27.08.2019 and
09.09.2019. Thereafter, the case was posted for judgment on
30.09.2019. This Court granted stay of further proceedings only on
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04.10.2019. The petitioner was fortunate that the judgment was not
pronounced on 30.09.2019.
13. When a case is at its final stage, this Court will be extremely
reluctant to order the transfer, as it may derail the entire process.
14. But at the same time, two major grievances of the petitioner
have to be addressed namely:
(i) the expenses for her travel from Mumbai to Palanpur; and
(ii) the evidence of her side getting rejected.
It appears that the petitioner’s application for payment of travel
allowance was rejected by the Family Court and the petitioner
moved the High Court by way of a special leave application. The fate
of the same is not known. Even the copy of the order dated
27.08.2018 passed by the Family Court rejecting the prayer for
travel allowance is not enclosed. However, it does not bar this Court
from passing appropriate orders in the interest of justice.
15. Similarly, the second issue can also be taken care of by
permitting the petitioner to move an application for reopening the
evidence on her side and directing the Court to allow the cross
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examination of the petitioner. Once these 2 issues are addressed,
the case can be allowed to reach its logical end in the very same
court.
16. Therefore in fine, the Transfer Petition is disposed of to the
following effect:
(i) The prayer for transfer is rejected;
(ii) The petitioner is permitted to move an application for
reopening of her evidence before the family Court. The
application may be allowed to be filed on line if such a facility
is available. Else, it may be permitted to be filed through
counsel without the petitioner having to undertake a travel.
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
respondenthusband, the Court may be granted a firm date.
On the date so fixed, the petitioner shall appear before the
Family Court. The respondent shall ensure that the cross
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examination of the petitioner is carried out without fail by the
counsel for the respondent. No request for any adjournment
on behalf of the respondent shall be allowed;
(iii) On all occasions except the date on which the petitioner
is to be cross examined, the petitioner may be permitted by
the Family Court to be represented by a counsel without being
present. If Video Conferencing facility is available, the
petitioner may be granted the said facility;
(iv) On every occasion when the family Court wants the
physical presence of the petitioner, the respondent shall pay a
sum of Rs.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 this court
Pending applications(s) if any shall also stand disposed of.
……………………………..J.
(V. Ramasubramanian)
New Delhi
January 29, 2021
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