Case BriefsSupreme Court

Supreme Court: Three days after the Court overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy, the 3-judge bench of SA Bobde, CJ and AS Bopanna* and V. Ramasubramanian, JJ referred to the law laid down in Vidya Drolia v. Durga Trading Corporation2020 SCC OnLine SC 1018 and explained what makes the lease disputes arising under the Transfer of Property Act, 1882 arbitrable and those under Rent Acts, non-arbitrable.

Here’s the explainer by the Court:

Disputes arising under Transfer of Property Act

Section 111, 114 and 114A of the TP Act indicate the manner in which the determination of lease would occur, which also includes determination by forfeiture due to the acts of the lessee/tenant in breaking the express condition   agreed between the parties or provided in law. The breach and the consequent forfeiture could also be with respect to nonpayment of rent.

In such circumstance where the lease is determined by forfeiture and the lessor sues to eject the lessee and, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, Section 114 of TP Act provides that the Court instead of passing a decree for ejectment may pass an order relieving the lessee against the forfeiture due to which the lessee will be entitled to hold the property leased as if the forfeiture had not occurred.

Under Section 114A of the TP Act a condition for issue of notice prior to filing suit of ejectment is provided so as to enable the lessee to remedy the breach.

“No doubt the said provisions provide certain protection to the lessee/tenant before being ejected from the leased property. In our considered view, the same cannot be construed as a statutory protection nor as a hard and fast rule in all cases to waive the forfeiture. It is a provision enabling exercise of equitable jurisdiction in appropriate cases as a matter of discretion.”

Such equitable protection does not mean that the disputes relating to those aspects between the landlord and the tenant is not arbitrable and that only a Court is empowered to waive the forfeiture or not in the circumstance stated in the provision.

When the disputes arise between the landlord and tenant with regard to determination of lease under the TP Act, the landlord to secure possession of the leased property in a normal circumstance is required to institute a suit in the Court which has jurisdiction. However, if the parties in the contract of lease or in such other manner have agreed upon the alternate mode of dispute resolution through arbitration the landlord would be entitled to invoke the arbitration clause and make a claim before the Arbitrator.

Even in such proceedings, if the circumstances as contained in Section 114 and 114A of TP Act arise, it could be brought up before the Arbitrator who would take note of the same and act in accordance with the law qua passing the award.

“If in the arbitration proceedings the landlord has sought for an award of ejectment on the ground that the lease has been forfeited since the tenant has failed to pay the rent and breached the express condition for payment of rent or such other breach and in such proceedings the tenant pays or tenders the rent to the lessor or remedies such other breach, it would be open for the Arbitrator to take note of Section 114, 114A of TP Act and pass appropriate award in the nature as a Court would have considered that aspect while exercising the discretion.”

Disputes arising under Rent Acts

The disputes arising under the Rent Acts are not arbitrable as notwithstanding the terms and conditions entered into between the landlord and tenant to regulate the tenancy, if the eviction or tenancy is governed by a special statute, namely, the Rent Act the premises being amenable to the provisions of the Act would also provide statutory protection against eviction and the courts specified in the Act alone will be conferred jurisdiction to order eviction or to resolve such other disputes.

“In such proceedings under special statutes the issue to be considered by the jurisdictional court is not merely the terms and conditions entered into between the landlord and tenant but also other aspects such as the bonafide requirement, comparative hardship etc. even if the case for eviction is made out.”

In such circumstance, the Court having jurisdiction alone can advert into all these aspects as a statutory requirement and, therefore, such cases are not arbitrable. The same is not the position in matters relating to the lease/tenancy which are not governed under the special statutes but under the TP Act.

Conclusion

Insofar as eviction or tenancy relating to matters governed by special statutes where the tenant enjoys statutory protection against eviction whereunder the Court/Forum is specified and conferred jurisdiction under the statute alone can adjudicate such matters. Hence in such cases the dispute is non-arbitrable.

If the special statutes do not apply to the premises/property and the lease/tenancy created thereunder as on the date when the cause of action arises to seek for eviction or such other relief and in such transaction if the parties are governed by an Arbitration Clause; the dispute between the   parties is arbitrable and there shall be no impediment whatsoever to invoke the Arbitration Clause.

[Suresh Shah v. Hipad Technology Pvt. Ltd., 2020 SCC OnLine SC 1038, decided on 18.12.2020]


*Justice AS Bopanna has penned this judgment

For petitioner: Advocate Vikas Dhawan

Also read: ‘Landlord-tenant disputes under Transfer of Property Act are arbitrable’. SC lays down test for determining non-arbitrability of disputes

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana*, Sanjiv Khanna** and Krishna Murari, JJ has overruled the ratio in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 wherein it was held that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.

Are Landlord-tenant disputes arbitrable?

“Landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.”

  • Landlord-tenant disputes are not actions in rem but pertain to subordinate rights in personam that arise from rights in rem. Such actions normally would not affect third-party rights or have erga omnes affect or require centralized adjudication.
  • An award passed deciding landlord-tenant disputes can be executed and enforced like a decree of the civil court.
  • Landlord-tenant disputes do not relate to inalienable and sovereign functions of the State. The provisions of the Transfer of Property Act do not expressly or by necessary implication bar arbitration.
  • Transfer of Property Act, like all other Acts, has a public purpose, that is, to regulate landlord-tenant relationships and the arbitrator would be bound by the provisions, including provisions which enure and protect the tenants.

A fourfold test for determining non-arbitrability of a dispute

(1) when cause of action and subject matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem.

(2) when cause of action and subject matter of the dispute affects third party rights; have erga omnes effect; require centralized adjudication, and mutual adjudication would not be appropriate and enforceable;

(3) when cause of action and subject matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; and

(4) when the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s).

However, these tests are not watertight compartments; they dovetail and overlap, albeit when applied holistically and pragmatically will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject matter is non-arbitrable. Only when the answer is affirmative that the subject matter of the dispute would be non-arbitrable.

Instances of Non-arbitrable disputes

  • Insolvency or intracompany disputes
  • Grant and issue of patents and registration of trademarks
  • Criminal cases
  • Matrimonial disputes relating to the dissolution of marriage, restitution of conjugal rights etc.
  • Probate, testamentary matter etc.
  • Allegations of fraud can be made a subject matter of arbitration when they relate to a civil dispute. This is subject to the caveat that fraud, which would vitiate and invalidate the arbitration clause, is an aspect relating to non-arbitrability.
  • Disputes which are to be adjudicated by the DRT under the DRT Act.

When can the issue of non-arbitrability be raised?

  1. Before the court on an application for reference under Section 11 or for stay of pending judicial proceedings and reference under Section 8 of the Arbitration Act;
  2. Before the arbitral tribunal during the course of the arbitration proceedings; or
  3. Before the court at the stage of the challenge to the award or its enforcement.

‘Existence of an arbitration agreement’ – Meaning

“An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law.”

Hence, the phrase ‘existence of an arbitration agreement’ in Section 11 of the of the Arbitration and Conciliation Act, 1996, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the arbitral tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non-arbitrability.

Who decides arbitrability?

The general rule and principle, in view of the legislative mandate clear from the amendments to the of the Arbitration and Conciliation Act, 1996 by Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the arbitral tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of “second look” on aspects of nonarbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.

Judicial Review- Scope

Scope of judicial review and jurisdiction of the court under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted in order to check and protect parties from being forced to arbitrate when the matter is demonstrably ‘non-arbitrable’ and to cut off the deadwood.

Rarely as a demurrer the court may interfere at the Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny.

The court by default would refer the matter when

  • contentions relating to non-arbitrability are plainly arguable;
  • consideration in summary proceedings would be insufficient and inconclusive;
  • facts are contested;
  • the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings.

“This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the arbitral tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.”

Justice NV Ramana, writing a separate but concurring opinion said

“Courts, while analyzing a case under Section 8, may choose to identify the issues which require adjudication pertaining to the validity of the arbitration agreement. If the Court cannot rule on the invalidity of the arbitration agreement on a prima facie basis, then the Court should stop any further analysis and simply refer all the issues to arbitration to be settled.”

He further states that the scope of the Court to examine the prima facie validity of an arbitration agreement includes only:

  1. Whether the arbitration agreement was in writing?
  2. Whether the arbitration agreement was contained in exchange of letters, telecommunication etc?
  3. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?
  4. On rare occasions, whether the subject-matter of dispute is arbitrable?

[Vidya Drolia v. Durga Trading Corporation, 2020 SCC OnLine SC 1018, decided on 14.12.2020]


*Justice NV Ramana penned a concurring opinion.

**Justice Sanjiv Khanna penned the judgment. 

For petitioners: Senior Counsels K. V. Vishwanathan, Manoj Swarup, Gopal Shankarnarayan

For Respondents: Senior Counsel Nakul Dewan and counsel Sourav Agarwal

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J. laid modified directions and affidavit of assets, income and expenditure to be filed by both the parties at the very threshold of a matrimonial litigation. The Court has modified the directions and the format of affidavit already issued in earlier judgments of the Delhi High Court.

These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

Earlier directions and affidavit

The directions to be followed while dealing with matrimonial cases were first issued in Kusum Sharma (1) v. Mahinder Kumar Sharma, 2014 SCC OnLine Del 7672. Further, in exercise of the powers under Section 10(3) of the Family Courts Act, 1984 read with Sections 106 and 165 of the Evidence Act and Article 227 of the Constitution of India, the format of affidavit of assets, income and expenditure was formulated by the Court in Kusum Sharma (2) v. Mahinder Kumar Sharma, 2015 SCC OnLine Del 6793 and the directions were modified. By its judgment in Kusum Sharma (3) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 11796, the Court modified the affidavit formulated in Kusum Sharma (2). Finally, in Kusum Sharma (4) v. Mahinder Kumar Sharma, 2017 SCC OnLine Del 12534, the directions and the affidavit were further modified. The modified directions in Kusum Sharma (4) have been in effect since 1st January 2018.

Need for modification

The High Court has now modified the earlier affidavit in Kusum Sharma (4) to make it more comprehensive. In the earlier judgments, the High Court considered International Best Practices including 10 affidavits of assets, income and expenditure used in 5 countries. 50 more formats of affidavits of assets, income and expenditure of various countries namely USA, UK, Ireland, Singapore, Canada, Australia and South Africa had now come to the notice of the Court. Thus, the Court was of the view that its judgment in Kusum Sharma (4) warrants modification.

The Bhandari Engineers case connection

In Bhandari Engineers & Builders( P) Ltd. (1) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-12-2019), the Delhi High Court had formulated an affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution cases. By its decision in Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020), the Court modified and improved the format of the affidavit to make it more comprehensive and further directions were passed so that the execution cases are decided within a period of 1 year from the date of their institution. In the Court’s opinion, the affidavits formulated in Bhandari Engineers (2) are far more comprehensive than the affidavit formulated by the Court for matrimonial cases. Therefore, the Court considered it appropriate to incorporate the benevolent features of Bhandari Engineers (2) in the format of the affidavits of assets, income and expenditure in matrimonial cases.

Affidavit of Assets, Income and Expenditure in matrimonial cases

The modified affidavit of assets, income and expenditure (“Annexure A2” in the present Judgment) is very comprehensive and is useful to determine the maintenance in matrimonial litigation.

Salaried person

A salaried person is required to disclose the particulars of his employment including salary, DA, commissions, incentives, bonus, perks, perquisites, other benefits, Income tax, etc.

Self-employed person

A self-employed person is required to disclose the nature of business/profession, share in the business, net worth of the business, number of employees, annual turnover/gross receipts, gross profit, Income Tax, net income and regular monthly withdrawal/drawings from the business.

Income from other sources

The parties are further required to disclose income from other sources, namely, agricultural income, rent, interest on bank deposits and other investments, dividends, mutual funds, annuities, profit on sale of movable/immovable assets, etc.

Assets

With respect to the assets, the parties are required to disclose the particulars of the immovable properties, financial assets including bank accounts, DEMAT accounts, safety deposit lockers; investments including FDRs, stocks, shares, insurance policies, loans, foreign investments; movable assets including motor vehicles, mobiles, computer, laptop, electronic gadgets, gold, silver and diamond jewellery, etc.; intangible assets; garnishee(s)/trade receivables; corporate/business interests; disposal and parting away of properties; properties acquired by the family members, inheritance.

Standard of living and lifestyle

The affidavit requires the parties to disclose their standard of living and lifestyle, namely, credit/debit cards, membership of clubs and other associations, loyalty programmes, social media accounts, domestic helps and their wages, mode of travel in city and outside city, category of hotels, category of hospitals for medical treatment, frequency of foreign travel, frequent flyer cards, brand of mobile, wrist watch, pen, expenditure ordinarily incurred on family functions, festivals and marriage of family members, etc.

Household expenditure, etc.

The affidavit further requires the disclosure of expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure, insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities, etc.

 Modified Directions

The modified directions laid down by the Court in the present decision in Kusum Sharma (5) are delineated below:

(1) The Court has to ascertain the financial capacity/status of the parties for determining the maintenance and permanent alimony. A comprehensive affidavit of assets, income and expenditure of both the parties is necessary to determine their financial capacity/status.

 (2) Upon completion of the pleadings in the maintenance application, the Court shall fix the date for reconciliation and direct the parties to simultaneously file the affidavits of their assets, income and expenditure. The Court shall also direct the party seeking maintenance to produce the passbook of his/her savings bank account in which maintenance can be directly deposited/transferred by the opposite party.

(3) The Court shall simultaneously take on record the affidavit of assets, income and expenditure of both the parties. The simultaneous filing of the affidavit by the parties is very important and should be strictly adhered to. The simultaneous filing of the affidavit by the parties would avoid any undue advantage to the party who files his/her affidavit later. It is clarified that the affidavit of assets, income and expenditure is not to be filed along with the petition/application or written statement/reply.

(4) If a party is carrying on the business as proprietor of proprietorship concern/partner of a partnership concern/director of a company/member of a HUF/trustee of a trust/ member of a society or in any other form/entity, the Court may consider directing the party to file an additional affidavit with respect to the assets of the proprietorship concern/partnership concern/ company/society/HUF/Trust, as the case may be, in the format of Annexure B1 attached to Bhandari Engineers (2).

(5) In pending maintenance cases, if the parties have not already filed the affidavit of their assets, income and expenditure, the Court shall direct the parties to file their affidavit in the format of Annexure A2.

(6) If the reconciliation fails, the Court shall grant an opportunity to the parties to respond to the affidavit of the opposite party and list the maintenance application for hearing.

(7) The Courts shall ensure that the filing of the affidavits by the parties is not reduced to a mere ritual or formality. If the affidavit of the party is not in the prescribed format or is not accompanied with all the relevant documents, the Court may take the affidavit on record and grant reasonable time to the party to remove the defects/deficiencies.

(8) In appropriate cases, the Court may direct a party to file an additional affidavit relating to his assets, income and expenditure at the time of marriage and/or one year before separation and/or at the time of separation.

(9) If the party does not truly disclose all his assets and income, the opposite party is at liberty to serve the interrogatories under Order 11 CPC and/or seek production of relevant documents from the party filing the affidavit.

(10) In appropriate cases, Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Section 30 CPC.

(11) The Court shall, thereafter, consider whether the oral examination of the party is necessary under Section 165 of the Evidence Act. If so, the Court shall proceed to examine the party to elicit the truth. The principles relating to the scope and powers of the Court under Section 165 of the Evidence Act have been summarised in Ved Parkash Kharbanda v. Vimal Bindal, 2013 SCC OnLine Del 994, which may be referred to.

(12) If the admitted income of the parties is on record, such as, in the case of a salaried employee whose salary slip is on record, the Court may fix ad-interim maintenance on the basis of the admitted documents pending filing of the affidavit of the assets, income and expenditure by both the parties. The Court may record the statement of the parties, if considered necessary for fixing the ad-interim maintenance.

(13) If any party delays in filing of the affidavit of assets, income and expenditure or the affidavit filed by a party is not in terms of these directions or a party delays the disclosure of further information/documents and the delay is causing hardship, the Court is at liberty to fix ad-interim maintenance after hearing the parties.

(14) If the statements made in affidavit of assets, income and expenditure are found to be incorrect, the Court shall consider its effect by drawing an adverse inference or imposing additional cost, while fixing the maintenance. However, an action under Section 340 CrPC is ordinarily not warranted in matrimonial litigation till the decision of the main petition unless the Court, for the reasons to be recorded, considers it expedient in the interest of justice, to deal with it earlier.

(15) At the time of issuing notice on the petition for dissolution of marriage, the Court shall consider directing the petitioner to deposit such sum, as the Court may consider appropriate for payment to the respondent towards interim litigation/part litigation expenses; except in cases, such as, divorce petition by the wife who is unable to support herself and is claiming maintenance from the respondent husband.

(16) The interim litigation expenses directed by the Court at the stage of issuing notice, does not preclude the respondent from seeking further litigation expenses incurred by the respondent at a later stage. The Court shall consider the respondent‘s claim for litigation expenses and pass an appropriate order on the merits of each case.

(17) At the time of passing a decree of divorce, the Court shall bring to the notice of the party concerned, as the case may be, that he/she can claim permanent alimony without prejudice to his/her right to challenge the decree of divorce and if the party seeks permanent alimony, at that stage, for which an oral prayer/application is sufficient, the Court shall fix the permanent alimony on the basis of the affidavits of assets, income and expenditure, after hearing both the parties. However, if the affidavits have not been filed at the stage of fixing the permanent alimony, the Court shall direct the parties to file the same before fixing the permanent alimony.

(18) In Bhandari Engineers & Builders( P) Ltd. (2) v. Maharia Raj Joint Venture (Ex. P. 275 of 2012, dt. 5-8-2020) the Delhi High Court has laid down comprehensive guidelines and has formulated affidavit of assets, income and expenditure to be filed by the judgment-debtor in execution proceedings, which may be considered in execution cases of the maintenance order apart from following the specific statutory provisions such as Sections 125 to 127 CrPC.

(19) The affidavit of assets, income and expenditure is to be treated as guidelines to determine the true financial capacity/status of the parties. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the parties to disclose relevant information and documents to determine their financial capacity/status. The Courts are at liberty to pass appropriate directions as may be considered necessary to do complete justice between the parties and in appropriate cases, such as, the cases belonging to the lowest strata of the society or case of a litigant who is a permanently disabled/paralytic, the Court may, for reasons to be recorded, dispense with the requirement of filing of the affidavit or modify the information required.

(20) These modified directions/guidelines shall apply to all matrimonial cases including cases under Hindu Marriage Act, 1955; Protection of Women from Domestic Violence Act, 2005; Section 125 CrPC; Hindu Adoption and Maintenance Act, 1956; Special Marriage Act, 1954; Indian Divorce Act, 1869; Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956.

(21) Matrimonial jurisdiction deserves a special attention and the maintenance applications should be decided expeditiously.

(22) The Courts below shall expedite the maintenance proceedings and shall make an endeavour to decide them within the prescribed time. The Family Courts shall send the list of all pending maintenance cases which are more than one year old, through the Principal Judge, Family Court. The list shall contain the name of the case; date of institution; number of hearings that have taken place; and the reasons for such delay. List be prepared according to the seniority, i.e. the oldest case shall be mentioned first. The Principal Judge, Family Court shall compile the lists of all Family Courts and shall send them to the Registrar General of the Delhi High Court by 31st December 2020 for being placed before the High Court.

Ancillary directions and suggestions

(a) The amici curiae submitted that the matter be kept pending for seeking feedback/comments of the Family Courts after implementation of the modified directions/guidelines. The matter is to be listed on 18th December 2020.

(b) The Court was of the view that the mandatory filing of the affidavit of assets, income and expenditure by the parties in a detailed prescribed form should be incorporated in the statutes, as in the developed countries. The Court was of the view that this suggestion be considered by the Central Government. Copy of the present judgment along with Annexure A2 is directed to be sent to Chetan Sharma, ASG, for taking up the matter with Ministry of Law and Justice.

(c) The modified directions and format of affidavit of assets, income and expenditure (Annexure A2) is directed to be uploaded on the website of the District Court (in .pdf format) to enable the lawyers/litigants to download the same.

(d) Copy of the present judgment and modified format of the affidavit of assets, income and expenditure (Annexure A2) is directed to be sent to the Registrar General of this Court who shall circulate it to the District Judge (Headquarters) and Principal Judge, Family Courts (Headquarters) for being circulated to all the concerned courts.

(e) Copy of the judgment along with the modified format of the affidavit of assets, income and expenditure (Annexures A2) is directed to be sent to the Delhi Judicial Academy to sensitise the judges about the modified directions laid down by the High Court.

(f) National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of the present judgment along with Annexure A2 is directed to be sent to National Judicial Academy.

Note of appreciation

The Court appreciated the assistance rendered by Sunil Mittal, Senior Advocate and Anu Narula, Advocate as amici curiae. The Court also appreciated the extensive research on corresponding law in other countries by Akshay Chowdhary, Law Researcher, attached to the Delhi High Court. [Kusum Sharma (5) v. Mahinder Kumar Sharma, 2020 SCC OnLine Del 931, decided on 6-8-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: H.S. Madaan, J. allowed the transfer application for the convenience of the wife in the divorce petition.

An application for the transfer of divorce petition was made by the applicant on the ground of financial constraint.

The brief facts of the case were that applicant Rajnish Kaur was the estranged wife of Sukhwinder Singh on account of matrimonial discord between the spouses. The spouses had a fight on the demand of the dowry raised by the respondent and his family and which the applicant could not get conceded from her parents. Thereby applicant with his minor son turned out of matrimonial home and shifted to his parent’s house. A divorce petition was filed against the respondent in Ludhiana despite the fact that such court does not have any jurisdiction. Also, it was difficult for the applicant to attend the dates of hearing due to financial constraint. Thus, the present application was filed.

The Court opined that the in matrimonial dispute between the spouse conveniences of wife should be looked. The reference was made to the case of Bhartiben Ravibhai Rav v. Ravibhai Govindbhai Rav, (2017) 6 SCC 785 in which the Supreme Court allowed the application for transfer of divorce petition to a place where the wife was residing considering various factors including the distance between the places where divorcee petition had been instituted. Reference was also made to the case of Apurva v. Navtej Singh, 2016 SCC OnLine P&H 3138, in which it was held that Generally, it is the wife’s convenience, which must be looked at by the Courts while deciding the transfer application. The application was thus allowed and the petition was transferred to the court of competent jurisdiction for disposal in accordance with the law.[Rajnish Kaur v. Sukhwinder Singh, 2019 SCC OnLine P&H 1422, decided on 14-08-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Vivek Rusia, J. refused to transfer the matrimonial dispute from Mandsaur to Gwalior.

The applicant/wife has filed the present petition under Section 24 of the CPC seeking transfer Matrimonial Case No.208/2017 from Family Court, Mandsaur to Family Court, Gwalior. The petition was filed by the respondent under Section 9 as well as under Section 13 of the Hindu Marriage Act, 1955 before the Family Court, Mandsaur. After receipt of summoning the petitioner has approached this Court by way of filing petition under Section 24 of the CPC seeking transfer mainly on the ground that being a lady it is not possible for her to travel all the way from Gwalior to Mandsaur and her parents and a two-year child is dependent on her.

The Court observed that the rule is that the convenience of a wife is required to be seen in the case of transfer of matrimonial cases. However, in the present case, the applicant is not a housewife but she is holding a higher post than the husband. She is working as Sub Divisional Officer in the Public Health Engineering Department. Further, in a matrimonial case, the presence of parties are not required at every stage, they are required to be present in Court only at the time of conciliation or evidence. Therefore, the wife cannot pray for transfer of all the matters to the place where she is residing as per her own convenience. The Court, therefore, refused to transfer the petition to the Gwalior Family Court.[Monika Gautam v. Jitendra, 2019 SCC OnLine MP 1896, decided on 01-08-2019]