Tuesday, 2 February 2021

Whether second transfer petition is maintainable after dismissal of first petition on merits?

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.

 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 2344 OF 2019

AMRUTA BEN HIMANSHU KUMAR SHAH  Vs HIMANSHU KUMAR PRAVINCHANDRA SHAH 

Dated: January 29, 2021

Coram: 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.


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:2


(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.


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


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


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


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


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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