Case BriefsHigh Courts

Kerala High Court: While deciding an application for transfer of two cases from one jurisdiction to another, R. Narayana Pisharadi, J., disposed of the same finding no reason to pass an order to that effect.

The factual matrix in the present case is that the respondent has filed O.P. No. 460 of 2019 against the first petitioner in the family court, Muvattupuzha for restitution of conjugal rights. The respondent has filed another O.P. No. 662 of 2019 against the petitioners in the same court seeking guardianship and permanent custody of the two minor children.

The present application has been filed by the petitioners to transfer the above mentioned two cases from the family court, Muvattupuzha to the family court, Thrissur.

The following grounds have been set forth by the petitioner for transfer of the cases: (1) The family court, Muvattupuzha has got no jurisdiction to entertain

and try the case O.P. No. 662 of 2019 and it should’ve been filed before the Family Court, Thrissur. (2) The first petitioner has filed a case as M.C.No.639 of 2019 against the respondent under Section 125 CrPC in the family court, Thrissur claiming maintenance for the two minor children. Consolidation of the two cases pending in the family court, Muvattupuzha and the case M.C.No. 639 of 2019 pending in the family court, Thrissur is necessary. (3) The first petitioner and her parents are residing at Thrissur. The convenience of the wife and the children has to be given preference in matrimonial matters.

With reference to the contention that family court, Muvattupuzha lacks jurisdiction, the Court observed that the said contention is irrelevant as it should have been raised before that family court itself. It requires consideration of disputed facts which can be done by the family court and not this Court.

The Court also observed that just because of the fact that first petitioner has instituted a case as M.C.No.639 of 2019 in the family court, Thrissur is also not a sufficient ground to transfer the other two cases pending in the family court, Muvattupuzha to the family court, Thrissur.

While deliberating over the principle generally followed that in applications for transfer of cases relating to matrimonial matters, the convenience of the wife has to be given preference; the Court observed that in the present matter preference has to be given to the convenience and welfare of the children.

Counsel for the respondent, Biju Abraham has submitted that currently children are in the custody of the respondent and they are living with him and his parents at his house which is within the jurisdiction of the family court, Muvattupuzha. The petitioner has failed to provide any evidence which could show otherwise. The respondent is a practicing doctor while the first petitioner is pursuing her post-graduate studies. Transfer of the cases from the family court, Muvattupuzha to the family court, Thrissur would cause considerable hardship to the respondent and also to the children.

The Court also noted that the respondent had filed O.P.(FC) Nos. 309 of 2020 and 323 of 2020 before this Court for speedy disposal of the cases O.P. No. 460 of 2019 and O.P. No. 662 of 2019 pending before the family court, Muvattupuzha in which this Court allowed the prayer issuing a direction that family court, Muvattupuzha has to dispose of the aforesaid two cases within a period of six months. If the cases are transferred now, then the same would result in an unnecessary delay thus defeating the purpose of expeditious disposal in return.

In view of the above, the Court has dismissed the present application finding no merit in the arguments raised by the petitioner.[Nimi v. Ajith M.T., 2020 SCC OnLine Ker 4313, decided on 09-10-2020]

Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: Explaining the law on transfer of cases from High Courts to the Supreme Court, the single judge bench of Aniruddha Bose, J has said that Article 139A of the Constitution vests the Supreme Court with jurisdiction to direct transfer or withdrawal of a case pending in a High Court to this Court on the following two conditions:

  • in the case pending before the Supreme Court, the questions of law involved ought to be the same or substantially the same as those involved in the case in the High Court, the withdrawal of which can be asked for.
  • the Supreme Court, while exercising the jurisdiction vested in it under Article 139A of the Constitution must be satisfied that such questions are substantial questions of general importance.

“Such satisfaction can be on Supreme Court’s own motion, on an application made by the Attorney General or on the basis of an application made by a party to any such case.”

The Court further explained that on satisfaction of these conditions, this Court can make direction in exercise of its discretion for withdrawing the case for disposal of the same by itself. The manner in which such discretion would be exercised would vary from case to case.

The Court was hearing a petition seeking transfer of a matter dealing with 10% vertical reservation for economically backward persons in general category in certain fields of public employment, from Punjab and Haryana High Court to the Supreme Court. The ground for seeking such transfer under Article 139A of the Constitution of India was that on identical point the Gujarat High Court has invalidated an ordinance issued by the State of Gujarat providing reservation of seats in the educational institutions in that State and of appointments and posts in the services under the state in favour of economically weaker sections of the unreserved categories and that decision is under appeal before the Supreme Court.

Considering that the points involved in the petition pending in the Punjab and Haryana High Court require adjudication of substantially the same questions of law and that the said questions have arisen in two different States, the Court was of the opinion that these were substantial questions of general importance and it, hence, allowed the petition to be transferred to the Supreme Court.

[Sunil Rathee v. State of Haryana, 2020 SCC OnLine SC 594 , decided on 23.07.2020]

Hot Off The PressNews

Supreme Court: The Court has asked CBI to investigate within 7 days the mysterious case of the accident in which the Unnao rape survivor was seriously injured along with her lawyer while her two aunts were killed in Rae Bareli on Sunday. The investigation is to be conducted by Secretary General under supervision of sitting SC judge nominated by CJI, to ascertain whether there was any lapse/negligence by registry officials in delay in processing letter of Unnao rape victim’s mother to CJI.

Ranjan Gogoi, CJ gave the direction to the agency after dismissing Solicitor General of India Tushar Mehta’s plea for a month’s time for completing the probe. CJI said,

 “A month? Probe should be completed within 7 days in the accident case, however, as an exception, CBI can take another week, but in no circumstance shall the probe extend beyond a fortnight.

The Court has transferred the trial of all the cases related to Unnao rape incident from Uttar Pradesh to Delhi and the designated judge in Delhi will commence the trial on day-to-day basis and complete the trial within 45 days.

As an interim measure, the Court has directed the UP government to pay Rs 25 lakh as compensation to the victim and also directed that security & protection be granted to the victim, her lawyer, mother of the victim, the four siblings of the victim, her uncle, and immediate family members in the village in Unnao.

Earlier in the day, the CJI ordered the CBI to present the status of the investigations after the agency was given charge of the probe into the accident and the FIR that included murder charges against rape accused and BJP MLA Kuldeep Sengar.
When the SG said the Investigating Officer was out of station and sought time till tomorrow morning for the agency to submit a report, the CJI dismissed it asking CBI to depute some ‘responsible’ official who can gather the information over phone and present it to the court. CBI Joint Director Sampat Meena, a woman officer, appeared before the bench and gave the status of the probe into the two cases.

On July 28, a truck rammed into the vehicle in which the Unnao rape survivor, her counsel and two aunts were travelling to Raebareli. While she and her lawyer sustained grievous injuries, her aunts were killed on the spot. The Unnao rape
survivor and her lawyer, who is being treated at King George’s Medical University are stable, the hospital said on Wednesday.

The Uttar Pradesh Police filed a case of murder against BJP MLA Kuldeep Singh Sengar and nine others in connection with the accident. Meanwhile, the BJP has expelled MLA Kuldeep Singh Sengar amidst the controversy.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: In the matter relating to Gorkhaland agitation, the bench of Dr. AK Sikri and Ashok Bhushan refused to transfer of investigation of all First Information Reports lodged against Bimal Gurung, the President of Gorkha Janmukti Morcha (GJM) and other members of GJM, to any independent investigation agency. The Court said:

“The offences alleged in the cases are serious offences including offences under Section 121, 121A, 153A and offences under Unlawful Act, 1967 as well as offences under Section 307, 302 IPC etc. Transfer of investigation of such large number of cases enmass is neither practicable nor justified.”

The Court noticed that the present case is a case where the petitioner as Leader of GJM is a spare heading an agitation against the State demanding a separate State-hood. F.I.R. registered at the instance of police leading serious offences involving petitioner and supporters of GJM, cannot be discarded on the plea that it was police, who has roped in the petitioner and other supporters by lodging the F.I.R. No bias or mala fide has been pleaded against any individual State functionary or police officer nor any such person has been impleaded in the writ petition so as to consider the allegation of bias. In the present case, neither there is any pleading nor any material to come to a conclusion that State functionaries including police functionaries are biased against the petitioner.

The bench said:

“The State is obliged to maintain law and order and to protect live and property of the citizens. It has to take necessary steps to contain such agitation and restore the peace.”

On the allegation that the State Police had destructed the property itself, the Court said that it cannot be imagined that State Police of West Bengal itself has destructed the property including Police vehicles only for the purpose of foisting cases against the petitioner and its supporters. Deaths of several persons which included Police personnel is admitted to by both the parties.

It was, hence, held that although as a principle, there is no fetter on an accused to move a Court of Law for transfer of investigation, but the present case cannot be said to be a case of individual’s persecution by the State authority.

Background of the Case:

The Gorkhaland Territorial Administration Act, 2011 was enacted to provide for the establishment of a Gorkhaland Territorial Administration for the region comprising the three sub-divisions, Darjeeling, Kalimpong, Kurseong and some mouzas of Siliguri subdivision in the district of Darjeeling and for certain matters incidental thereto. The agitation in question that arose after the Minister of Education, Government of West Bengal in a press conference stated that Bengali would be compulsory in all schools in West Bengal. The Gorkhas viewed this as an encroachment on their language, i.e. Nepali/Gorkhali. [Bimal Gurung v. Union of India, 2018 SCC OnLine SC 233, decided on 16.03.2018]