Supreme Court: In a case dealing with Transfer of petition under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights from Palanpur, Gujarat to Mumbai after a previous Transfer Petition was dismissed, the single-judge bench of V. Ramasubramanian, J has held that the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. However, 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.
In the present case, after three years of the dismissal of the first Transfer Petition, the petitioner came up with the present Transfer Petition on the ground that there are change of circumstances warranting a fresh look as her mother had died making it impossible for her to leave two minor daughter in Mumbai to attend to the hearings at Palanpur; and also because it was becoming difficult for her to defend the case, which was being listed for hearing on 2 to 3 occasions every month as the Family Court was imposing penalties upon her whenever a request for adjournment was sought or when the Legal Aid lawyer appointed on her behalf did not attend the Court. Further, the Family Court discarded the evidence of the petitioner and struck off her right of evidence after which the petitioner came up with the Transfer Petition.
The respondent, on the other hand, argued 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.
Considering both the aspects, the Court was of the opinion that 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.
“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.”
The Court, hence, rejected the Transfer Petition but issued the following directions:
- The petitioner be permitted to move an application for reopening of her evidence before the family Court.
- The application may be allowed to be filed online if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having to undertake a travel. 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;
- 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 respondent-husband, 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.
- 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 the Supreme Court.
[Amruta Ben Himanshu Kumar Shah v. Himanshu Kumar Parvinchandra Shah, 2021 SCC OnLine SC 46, decided on 29.01.2021]
Counsels who appeared before the Court
For petitioner: Advocate
For respondent: Advocate Ranu Purohit
