A division bench of the Apex Court held that ‘Section 9 of Hindu Marriage Act, 1955 (popularly called as Restitution of Conjugal Rights case) is not violative of Articles 14 and 21 (right to privacy)‘.
Tag: Reportable Judgement or Order
Achin Gupta Vs State of Haryana and Anr on 03 May 2024
A division bench of the Apex Court held as follows,
From Para 31-32,
31. We are of the view that the category 7 referred to above should be taken into consideration and applied in a case like the one on hand a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the submission canvassed by the counsel appearing for the Respondent No. 2 and the State is to be accepted mechanically then in our opinion the very conferment of the inherent power by the Cr.P.C. upon the High Court would be rendered otiose. We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the First Information Report and the chargesheet papers disclose the commission of a cognizable offence. If the allegations alone as levelled, more particularly in the case like the one on hand, are to be looked into or considered then why the investigating agency thought fit to file a closure report against the other co-accused? There is no answer to this at the end of the learned counsel appearing for the State. We say so, because allegations have been levelled not only against the Appellant herein but even against his parents, brother & sister. If that be so, then why the police did not deem fit to file chargesheet against the other co-accused? It appears that even the investigating agency was convinced that the FIR was nothing but an outburst arising from a matrimonial dispute.
32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.
From Para 35,
35. In one of the recent pronouncements of this Court in Mahmood Ali & Ors. v. State of U.P & Ors., 2023 SCC OnLine SC 950, authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482 of the CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines.
Index of Quash judgments is here.
K Sreekanth Naik Vs P Nalini and Anr on 25 Apr 2024
A single judge bench of Andhra Pradesh High Court held that an Order for Maintenance passed without adhering to the guidelines issued by Apex Court in Rajnesh Vs Neha is liable to be set aside.
From Para 5,
5. During the hearing, it is brought to the notice of the Court that both parties have not complied with the directions of the Hon’ble Apex Court enunciated in the judgment of Rajnesh V. Neha & Anr.,1 concerning the filing of affidavits disclosing the assets and liabilities. Considering the submissions made, I have gone through the observations in Rajnesh V. Neha (cited supra) case. The said judgment has brought revolutionary change in the procedure to be followed by the Courts in dealing with the applications filed under Chapter IX of the Cr.P.C. The Hon’ble Supreme Court has issued comprehensive procedural and normative directions streamlining the maintenance laws, inter alia, directing that the parties in a maintenance application have to file affidavits of disclosure of their assets and liabilities, which must be considered by Courts while deciding the application. It is also held that, in case of a dispute on the declaration made in the affidavits of disclosure, the aggrieved person can seek leave of the Court to serve interrogatories on the opposite side and seek production of relevant documents as provided under Order 9 of the Code of Civil Procedure, and in case a false statement or misrepresentation is made, the Court can initiate proceedings under section 340 of the Cr.P.C., or for Contempt of Court.
From Paras 7-14,
7. The aforesaid Judgment in the case of Rajnesh (cited supra) has been recently reiterated by the Hon’ble Supreme Court in the case of Aditi alias Mithi V. Jitesh Sharma 2 and expressing anguish over noncompliance/ improper compliance of the directions laid down in case of Rajnesh (supra) and directed re-circulation of the judgment for compliance thereof.
8. It is acknowledged that both parties have failed to submit the affidavits disclosing their assets and liabilities. Learned counsel for the Petitioner has relied on the decision of High Court of Patna in between Gitanjali Devi @ Gitanjali Kumari V. State of Bihar and another3, wherein, it is observed that the impugned order of granting maintenance amount is liable to be set aside for the reason that it has not followed the procedure prescribed by the Hon’ble Apex Court.
9. By following the principles laid down in the Aditi alias Mithi’s case cited supra, the High Court of Madras in Balram Dixit V. Smt. Kiran Dixit and another (Criminal Revision No.1255 of 2023, dated 17.01.2024) also set aside the maintenance awarded by the learned Principal Judge, Family Court,Gwalior and further directed the both parties to submit fresh affidavits of disclosure of assets and liabilities with complete particulars in compliance with the directions of the Hon’ble Supreme Court laid down in the case of Rajnesh’s case cited supra.
10. Learned counsels representing both sides submit that because of lack of proper instructions, both parties could not comply with the directions of the Hon’ble Apex Court and at present, they are ready to comply with the observations made in the judgments referred to supra, by filing the affidavits and both parties submits that the Respondent-husband is paying interim maintenance amount @ Rs.8,000/- per month vide orders dated 26.09.2019 in Crl.M.P.No.39 of 2019 in F.C.O.P.No.183 of 2018 and he is ready to pay such maintenance amount during the pendency of FCOPs and after its restoration.
11. In view of the same, this Court refrains from delving into the merits of the case at this juncture, as the impugned order passed in F.C.O.P.No.183 of 2018 is liable to be set aside for the reason that it has not followed the procedures prescribed by the Hon’ble Apex Court.
12. The impugned order passed in F.C.O.P.No.183 of 2018, is accordingly, set aside and the matter is remitted back to the learned Judge, Family Court – cum – VII Additional District Judge, Ananthapuramu for fresh consideration and by following the procedures which are laid down in the judgment of the Hon’ble Supreme Court.
13. This Court further directs the both parties to submit affidavits disclosing their assets and liabilities, giving complete particulars, in accordance with the directives of the Hon’ble Apex Court as laid down in the case of Rajnesh (supra) before the Family Court. The Family Court must ensure strict adherence to these guidelines. If any of the affidavits are found to be lacking in necessary particulars, the learned Judge shall direct to produce the relevant information from the respective party.
14. The Family Court shall dispose of the F.C.O.P.No.183 of 2018 afresh after giving reasonable opportunity to both parties to let in further evidence, if any. In the meantime, the Respondent-husband is directed to pay maintenance amount of Rs.8,000/- per month to the Petitioner-wife till the disposal of the FCOP. Both parties are directed to bear their own costs.
Disclaimer: This is a case that I handled myself for the husband. This is my first reportable judgment.
Citations: [2024 Latest Caselaw 3581 AP]
Other Sources:
https://indiankanoon.org/doc/7473550/
https://www.casemine.com/judgement/in/671c878cafb795648bb5985d
https://mynation.net/docs/1098-2023/
https://latestlaws.com/judgements/andhra-high-court/2024/april/2024-latest-caselaw-3581-ap
Index of Maintenance cases under section 125 CrPC is here.
Pathapati Subba Reddy (Died) By LRs and Ors Vs Special Deputy Collector (LA) on 08 Apr 2024
A division bench of Apex Court passed these guidelines with respect to condoning the delay in filing appeals…
From Para 26,
26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.
Joseph Salvaraj A Vs State of Gujarat and Ors on 4 Jul 2011
A division bench of the Apex Court held as follows,
From Para 11,
11.The Appellant, thereafter, was constrained to file the petition under Section 482 of the Code in the High Court of Gujarat at Ahmedabad, with a prayer for quashing of the FIR bearing C.R. No. I-371/2006 registered with Odhav Police Station and to stay further investigation in the case. The said
application came to be considered before the learned Single Judge on 11.1.2007. By that time, charge sheet was already filed before the Competent Criminal Court. Thus, learned Single Judge, was of the opinion that it was not a fit case to be entertained and refused to hear the petition on merits, even though the appellant was given liberty to file an application for his discharge before the Trial Court. It may be noted that even in its impugned order the learned Single Judge has emphasized that he had not considered the case on merits. Thus the Appellant’s petition was dismissed and interim order granted in his favour was vacated.
From Paras 15 and 16,
15. The allegations in the F.I.R. clearly discloses a civil dispute between the parties and the FIR seems to have been filed only with an intention to harass and humiliate the Appellant. This was a pre-emptive move by the Complainant.
16. A summary Civil Suit under Order 37 Rule II of Code of Civil Procedure (hereinafter to be referred as ‘CPC’) has already been filed by Dharmendra P. Rami @ Laläbhai against the Appellant and the Respondent No.4, Complainant herein, before the City Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs together with interest thereon. In the said suit an unconditional leave to defend has already been granted to the Appellant and the matter is still pending. In the light of the aforesaid submissions, it was contended that it is a fit case where the FIR deserves to be quashed otherwise the same would amount to abuse of the process of law.
From Paras 21-23,
21. Criminal breach of trust is defined under Section 405 of the IPC and 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both.
22. Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab initio on the part of the appellant.
23. Section 506 of the IPC deals with punishment for criminal intimidation. Criminal intimidation, insult and annoyance have been defined in Section 503 of the IPC but the FIR lodged by complainant does not show or reflect that any such threat to cause injury to person or of property was ever given by the Appellant to the Complainant.
24. Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant’s FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examinedwhether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant’s FIR, charge sheet, documents etc. ornot.
25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of propertyor breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against theAppellant. It does not meet the strict standard of proof required to sustain a criminal accusation.
From Para 27,
27. In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.
Index of Quash judgments is here.
Abhishek Gour Vs State of MP on 31 Aug 2023
A full bench of the Apex Court passed this order,
From Para 8, (Police merely replicated the contents of the FIR and added nothing further on the strength of their investigation, observes Supreme Court of India, karma!)
8. Om Prakash, Bhawna’s father, also made a statement before the police on 08.09.2013 on the same lines. He said that her marriage was performed at Indore on 02.07.2007 and as per his status, he had given cash,gold, jewellery, clothes etc., totalling to ₹.5 lakhs, in dowry. He said that, whenever Bhawna came to meet them, she used to tell him and all the neighbours that her husband, Nimish, mother-in-law, Kusum Lata, and brothers-in-law, Abhishek and Sourabh, used to tell her that her father had given nothing in dowry and when she went to her parental home, she should bring .2 lakhs in cash, a car and gold jewellery. ₹ He stated that they had been harassing his daughter mentally and physically for dowry. He alleged that, on Karvachauth day, Bhawna’s mother-in-law had demanded 100 sarees but he had refused. Renubala, Bhawna’s mother, also made a statement on 08.09.2013 on identical lines. Two of their neighbours, Sushila Bai andMohan, also gave statements on the same day, supporting Bhawna’s version. According to them, whenever Bhawna came to meet her parents, she used to tell them that her in-laws were torturing her mentally and physically for dowry.On the other hand, Shailendra and Radhey Shyam, who lived in the neighbourhood where Nimish’s father had his residence, stated to the effect that there were no demands made of Bhawna or her family for dowry and that she was never harassed on that ground. In their final report dated20.09.2013, the police merely replicated the contents of the FIR and added nothing further on the strength of their investigation.
From Para 9, (Attempts to terrorize)
9. Certain other facts are also of pertinence and may be noted. Abhishek entered judicial service as a Civil Judge six or seven months after the marriage of Bhawna with Nimish. He was posted at Ujjain and, thereafter,at Neemuch in Madhya Pradesh. Kusum Lata used to reside with Abhishek. Saurabh, Bhawna’s other brother-in-law, is an architect and was working at Delhi since the year 2007. Nimish made written representations to the police authorities at Narsinghpur on 09.09.2012 and 17.11.2012 complaining of intimidation by and at the behest of Bhawna. Prior thereto, an anonymous complaint was made to the Chief Justice, Madhya Pradesh High Court, against Abhishek, making scandalous allegations to the effect that he was undeserving of judicial office. A complaint was also made to the Anti-Corruption Bureau, Mumbai, purportedly in the name of one Sanyogita Mishra. Again, the allegations therein were directed against Abhishek.
From Para 11,
11. This being the factual backdrop, we may note at the very outset that the contention that the appellants’ quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr.P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. vs. State of Gujarat and others {(2011) 7 SCC 59}]. This principle was reiterated in Anand Kumar Mohatta and another vs. State (NCT of Delhi), Department of Home and another [(2019) 11 SCC 706]. This issue, therefore, needs no further elucidation on our part.
From Para 13,
13. Instances of a husband’s family members filing a petition to quash criminal proceedings launched against them by his wife in the midst of matrimonial disputes are neither a rarity nor of recent origin. Precedents aplenty abound on this score. We may now take note of some decisions of particular relevance. Recently, in Kahkashan Kausar alias Sonam and others vs. State of Bihar and others [(2022) 6 SCC 599], this Court had occasion to deal with a similar situation where the High Court had refused to quash a FIR registered for various offences, including Section 498A IPC. Noting that the foremost issue that required determination was whether allegations made against the in-laws were general omnibus allegations which would be liable to be quashed, this Court referred to earlier decisions wherein concern was expressed over the misuse of Section 498A IPC and the increased tendency to implicate relatives of the husband in matrimonial disputes. This Court observed that false implications by way of general omnibus allegations made in the course of matrimonial disputes, if left unchecked, would result in misuse of the process of law. On the facts of that case, it was found that no specific allegations were made against the in-laws by the wife and it was held that allowing their prosecution in the absence of clear allegations against the in-laws would result in an abuse of the process of law. It was also noted that a criminal trial, leading to an eventual acquittal, would inflict severe scars upon the accused and such an exercise ought to be discouraged.
From Para 21, (unexplained delay)
21. Most damaging to Bhawna’s case is the fact that she did nothing whatsoever after leaving her matrimonial home in February, 2009, and filed a complaint in the year 2013 alleging dowry harassment, just before her husband instituted divorce proceedings.
Index of Quash judgments is here.
Bipin Chander Jaisinghbhai Shah Vs Prabhawati on 19 Oct 1956
A division bench of Apex Court held as follows, (with respect to ‘desertion’)
Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned : (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
Citations: [1957 AIR 176], [1956 SCR 838]
Other Sources:
https://indiankanoon.org/doc/1131783/
Index of Divorce judgments is here.
Grasim Industries Ltd Vs Collector of Customs Bombay on 04 Apr 2002
Sitting on the full bench of Apex Court, Justice Arijit Pasayat, held as follows, while interpreting the statutes passed by the Legislature.
From Para 9,
No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC 1] “we cannot aid the Legislature’s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there”. In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr. (AIR 1990 SC 1747), Union of India and Anr. v. Deoki Nandan Aggarwal (AIR 1992 SC 96), Institute of Chartered Accountants of India v. Price Waterhouse and Anr. (1997 (6) SCC 312) and Harbhajan Singh v. Press Council of India and Ors. (JT 2002 (3) SC 21)]
Court Kutchehry Version:
Satender Kumar Antil Vs CBI and Anr on 07 Oct 2021 (and other Directions)
A division bench of Apex Court passed these guidelines with respect to issue of Summons and Warrants and Recall of NBW,
After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.
Citations: [(2021) 10 SCC 773], [2022 LiveLaw (SC) 577]
Other Sources:
https://indiankanoon.org/doc/16350770/
https://www.casemine.com/judgement/in/62ba660db50db90d4b55ecaf
A corrected Reportable judgment is passed on 11 Jul 2022…
Further time is given to comply with the directions earlier given on 03 Feb 2023…
Supreme Court also directed as follows.
The judgment in the present case i.e. “Satender Kumar Antil Vs. CBI” reported in (2022) 10 SCC 51 and the judgment in Siddharth’s case (supra) should be incorporated as part of the curriculum of the State Judicial Academies and the National Judicial Academy.
Interim directions given on 21 Mar 2023 considering the States and High Courts did not provide the required information to Amicus
Some individual cases were filed alleging non-compliance of this Order by some Magistrates… SC passed this order on 02 May 2023
Final Judgment on 13 Feb 2024
Supreme gave another ‘last’ change on 07 May 2024 to file affidavits that have not complied with the directions issued in this case.
Notices must not be issued via WhatsApp, says Supreme Court.
Negating the plea of State of Haryana, Supreme Court held that notices u/s 41A of Cr.P.C. or u/s 35 of BNSS cannot be sent via WhatsApp or any other electronic communication medium, unlike section 530 BNSS, which mandates that, Trials, Inquires and Proceedings that may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.” So, Parliament says, Courts can use technologia but Police must use postman.
Index of NBW Judgments is here.
NCV Aishwarya Vs AS Saravana Karthik Sha on 18 Jul 2022
A division bench of Apex Court said that wife’s convenience which must be looked at while considering transfer.
From Paras 8-11,
8. It is not disputed that the appellant is the resident of Chennai and that the appellant’s husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.
9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socio-economic paradigm in the Indian society, generally, it is the wife’s
convenience which must be looked at while considering transfer.
10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.
11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein.
12. Resultantly, the appeal succeeds and is accordingly allowed. The Order dated 19.11.2020 passed by the High Court in TR.C.M.P. NO.473 of 2020 is set aside. We direct transfer of F.C.O.P. No.125 of 2020 pending consideration before the Family Court, Vellore to the jurisdictional Family Court at Chennai. We also direct the clubbing of the aforementioned three cases so that a common order may be passed by the concerned Family Court at Chennai.
Citations:
Other Sources:
Index of Transfer Judgments is here.
