Case BriefsSupreme Court

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

Case BriefsSupreme Court

Supreme Court: In the matter relating to alleged sacrilege of the holy book, Shri Guru Granth Sahibji in different places in Punjab,the single judge bench of Hrishikesh Roy, J has refused to transfer the Trial of criminal cases pending before the Courts at Bhatinda, Moga and Faridkot districts to competent Court in Delhi or to any nearby State, out of Punjab.

The transfer was sought on the ground that the case has generated deep anguish and bitterness amongst a particular religious group, who form majority of the population in the State of Punjab and therefore the accused who are members of the Dera Sacha Sauda sect, are facing bias and prejudice and are unlikely to get a fair trial in the face of strong presumption of culpability.

The Court, however, said,

“From the available material, this Court cannot reasonably conclude that the situation in Punjab is not conducive for a fair trial for the petitioners. The few instances mentioned by the petitioners’ counsel may suggest heightened feelings amongst different groups but they do not in my estimation, call for transfer of proceedings to another State.”

The Court, however, directed the State to make all arrangement to ensure safe conduct of proceedings at the trial courts and also provide adequate security to the petitioners and their associates as might be warranted from the security perspective.


Incidents in support of the contention that the accused were unlikely to get a fair trial in Punjab


  • the murder of the accused Mohinder Pal Singh Bittoo on 22.06.2019 inside the Nabha Central jail, showed the threat to the lives of other co-accused in the hands of the radical elements in the State.
  • public appeals have been made to socially boycott the accused and also to those dealing with them, such as lawyers, doctors and taxi drivers and these developments would indicate the serious difficulties faced by the accused in conducting their defence.
  • a forced statement under Section 164 CrPC was obtained from the petitioner which suggests that in Punjab, an unbiased prosecution cannot be ensured.
  • mass gathering in the court premises where these cases are listed on the given dates, shows the threat to the life of the accused since adequate arrangement and security has not been provided by the State.

Why the Supreme Court refused to transfer the trial


Explaining when can a trial be transferred from one Court to another, the Court said that the Court must be fully satisfied about existence of such factors which would make it impossible to conduct a fair trial. General allegation of surcharged atmosphere is not however sufficient.

“The apprehension of not getting a fair and impartial trial cannot be founded on certain grievances or convenience of the accused but the reasons have to be more compelling than that. No universal Rules can however be laid down for deciding transfer petitions and each one has to be decided in the backdrop of that case alone.”

Further, powers under Section 406 CrPC must be exercised sparingly and only in deserving cases when fair and impartial trial uninfluenced by external factors, is not at all possible. If the Courts are able to function uninfluenced by public sentiment, shifting of trial would not be warranted.

The transfer of trial from one state to another would inevitably reflect on the credibility of the State’s judiciary. Except for compelling factors and clear situation of deprivation of fair justice, the transfer power should not be invoked.”

For coming to the conclusion that the present bunch of cases do not fall under such exceptional categories and hence, cannot be transferred, the Court kept in mind the following considerations:

  • The petitioners have not moved out and continue to reside in the usual place of residence in the State and doing their work/business in a routine manner.
  • No specific instance of prejudice was brought to the Court’s notice on account of social boycott call or appeal to the Medical professionals or taxi operators, to deny co-operation.
  • No complaint was lodged before the court or to the authorities about any threat or intimidation.
  • While there is a specific instance of one of the defence lawyer disassociating himself from the case on personal ground, the two regular lawyers Mr. K.S. Brar and Mr. R.K. Rana continue to defend the accused since January, 2019 without any break or difficulty. This would suggest that petitioners defence is not being compromised in Punjab and they are receiving adequate legal assistance.
  • The matter emanates from the State of Punjab and the accused, the witnesses and the prosecutors are all from the State. If the trial is shifted out, all of them will face difficulties.
  • The State’s pleading shows that those accused who have a threat implication have been provided personal security by the district police and laborate arrangements have been made on orders of the State’s DGP and on the trial date, additional force are deployed in the concerned Courts, to ensure safety of the petitioners and all other stakeholders.
  • As the sacrilege incidents occurred in 2015, with passage of time, the atmosphere is expected to have mellowed down considerably. It has been more than 2 years since the petitioners were arrayed as accused in the cases. During this long period, no complaint has been made by the petitioners of any threat to their security or to their associates.
  • The petitioners who reside in different districts in Punjab are doing their work or business in a routine manner, without any inhibition.
  • Insofar as the death of the accused Bittoo in Nabha jail, the projection of the State is that he was murdered by jail inmates undergoing life imprisonment in some other cases and for this incident FIR under Section 302, 34, 120B IPC is registered in PS Sadar, Nabha, chargesheet has been filed and trial has commenced. Hence, at this stage it cannot be said if this incident has any link with the other cases or it is a standalone event.
  • The trial it at the stage of final arguments. The other five cases are at the stage of evidence or charge stage. It will therefore not be fair to the prosecution, the State and the witnesses who are yet to testify, to shift the proceeding without compelling reasons as it will inevitably delay the trial. One must also remember that convenience of all parties should be looked at and not just the party which is seeking transfer.

[Jatinderveer Arora v. State of Punjab, 2020 SCC OnLine SC 952, decided on 25.11.2020]


For Petitioners: Senior Advocate Ranjit Kumar

For Respondent: Senior Advocate Harin P Raval

Case BriefsSupreme Court

Supreme Court: In a case where the husband and wife both sought transfer of cases filed against by both of them against one another, the single judge bench of V. Ramasubramanian, J allowed the transfer petition filed by the wife and transferred the divorce case instituted by the husband in Pune to Delhi on ground wife having no independent source of income. The bench held that the phrase “the petition presented later” under Section 21-A(2)(b) of the Hindu Marriage Act, 1955 does not include a petition filed under Section 9 of the Act for restitution of conjugal rights.


Backstory


Both the parties got married to each other in November, 2015 and started living separately from January, 2019 as dispute arose between them. Soon after, in May 2019, the husband filed a petition for divorce before Family Court, Pune.

The wife filed a transfer petition in the first week of July, 2019, followed by a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi on July 15, 2019. The husband then filed a petition seeking transfer of the petition for restitution of conjugal rights to Pune.

The wife sought transfer on the ground that she has no independent source of income and that since the husband is not even paying any maintenance, she is entitled to have the divorce petition transferred to the Family Court in New Delhi, so that the petition for divorce filed by the husband could be tried together with the petition for restitution of conjugal rights filed by her.

The husband, on the other hand, contended that his own petition for divorce was prior in point of time and that therefore under Section 21-A(2)(b) of the Hindu Marriage Act, 1955, the petition filed by the wife subsequently, is liable to be transferred to Pune. He also offered to bear the expenses for the travel of the wife from Delhi to Pune.

He, further, stated that his father is suffering from seizures and asthma and that his mother has undergone a cervical biopsy recently and that therefore it is not possible for him to leave his aged parents and travel to Delhi, for conducting the proceedings.


Analysis


The Court was of the opinion that the contention that under Section 21-A(2)(b) of the Hindu Marriage Act, 1955[1], a petition filed later in point of time should be transferred to the Court in which a petition under the Act had been filed prior in point of time, is misconceived.

Noticing that Sub¬section (2) of Section 21-A has no independent existence de hors Sub-section (1), the Court explained,

“Sub¬Section (1) of Section 21-A, deals with a situation where one party to a marriage has filed a petition either for judicial separation under Section 10 or for a decree of divorce under Section 13, before a District Court having jurisdiction and thereafter the other party to the marriage, files a petition either under Section 10 or under Section 13, before the same District Court or in a different District Court in the same State or in a different State.”

In the present case, the petition that was filed by the husband, first in point of time, was a petition for divorce and hence his case may fit into clause (a) of Sub-section (1) of section 21-A but,

“… what was filed by the wife later in point of time was only a petition under Section 9 and not a petition either under Section 10 or under Section 13 of the Hindu Marriage Act. Hence, the wife’s petition, though subsequent in point of time, does not fall under Clause (b) of Sub-section (1) of Section 21-A. As a consequence, Sub-section (1) of Section 21-A has no application to the case on hand, as the pre-conditions stipulated therein are not satisfied.”

On the offer made by the husband to meet the travel expenses for the wife, the Court said that the wife may have to travel a distance of more than 1000 km. every time and hence,

“When the contention that the wife is unemployed and her claim that no maintenance is paid, are not seriously disputed, the offer now made by the husband does not convince me.”

The Court, hence, directed the divorce petition from the Family Court, Pune to the Court of Principal Judge, Family Court, Saket, New Delhi and directed that it shall be tried together with the wife’s petition under Section 9 of the Act.

[Shruti Kaushal Bisht v. Kaushal R. Bisht, 2020 SCC OnLine SC 913, order dated 06.11.2020]


[1]21A. Power to transfer petitions in certain cases – 

(1) Where –

(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

(2)  In a case where sub-section (1) applies, –

(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;

(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

Case BriefsHigh Courts

Kerala High Court: Shircy V., J. allowed the transfer petition of the petitioner’s matrimonial dispute cases to the Family Court most convenient for her to appear before.

In the present case, the petitioner who resides with her minor child at her paternal home approached the Court seeking to transfer her matrimonial dispute cases to the Family Court in the district where she currently resides.

The Court while evaluating the facts and circumstances of the case took note of her hardships and the inconvenience she has to undergo while travelling up and down to the Family Court where her cases are pending. The Court further emphasised that such hardships were not uncommon especially amongst women who are aggrieved by such disputes.

Therefore, the Court laid stress on taking a lady’s convenience to travel while considering transfer petitions in the future too.[Valsala Nisha v. Rajesh Soman Nair, 2020 SCC OnLine Ker 3184, decided on 11-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ, and A.S. Gadkari, JJ., deferred the hearing for PIL’s filed in view of the unnatural death of Sushant Singh Rajput, a film actor.

In the present two Public Interest Litigations, it has been sought that CBI should be entrusted with the investigation into the unnatural death of a film actor, Sushant Singh Rajput.

Advocate General for the State, A.A. Kumbhakoni informed the Court that a petition with similar relief was moved before the Supreme Court, but the same was dismissed.

The petitioner on being asked for the copy of the petition stated answered in negative and added that the Supreme Court while dismissing the petition granted liberty to approach this Court.

Another significant point that the Court noted was the Supreme Court’s order dated 5-08-2020 wherein a status report has been called for from the State of Maharashtra in regard to the stage of investigation by Mumbai Police.

Hence, the Advocate General for the State states that the Court may not pass any order on the present petition and may await the Supreme Court’s decision.

Additional Solicitor General, Anil Singh submitted that on acceptance of the request of the deceased father, the CBI has already registered an FIR, inter alia, under Section 306 of the Penal Code, 1860. He has also questioned the approach of the Mumbai Police in quarantining an IPS officer of the Bihar cadre, who had come to Mumbai for the purpose of ascertaining facts, although four other officers of Bihar Police who had earlier visited Mumbai were not meted out such treatment.

Hence in view of the above stated, Court while deferring the hearing till 21-08-2020, stated that CBI has registered an FIR and it would not be appropriate, at this stage, to express any opinion either way.

It would be just and proper to await the orders of the Supreme Court in the pending Transfer Petition, referred to above. [Priyanka Tibrewal v. UOI, 2020 SCC OnLine Bom 848, decided on 07-08-2020]


Also Read:

Sushant Singh Rajput death case| SC asks Mumbai Police to submit status of investigation so far; says truth must come out

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. allowed a petition filed under Article 227 of the Constitution of India with Section 24 of the Code of Civil Procedure to transfer the case from the court of learned Civil Judge, Sundernagar, to the court of learned District Judge, Kullu, District Kullu

The learned counsel for the petitioner, Amar Dev Sharma, pleaded that the petitioner being a lady has to travel from Kullu to Sundernagar and undergo great hardships in the process. Also, she apprehends some untoward incident and danger to her life and liberty at Sundernagar. He placed reliance on Urvashi Rana v. Himanshu Nayyar, 2016 SCC OnLine HP 2460 stating that the convenience of the wife is required to be considered over and above the inconvenience of the husband.

The Court relied on Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237 and held that the convenience of the wife is of prime consideration. Further, it is the duty of the Court to transfer the case if either of the parties feel that they are not likely to have a fair trial. The court also opined that the petitioner is unnecessarily being made to spend huge amount of money.

Taking into consideration, the fact that a petition under Hindu Marriage Act, 1955 can only be adjudicated by a Family Court and the jurisdiction of the matrimonial cases pertaining to Kullu District is with the Family Court at Mandi; the instant petition was allowed and the case was transferred to Kullu District Court. [Sunil Kaur v. Yashpal Singh, 2019 SCC OnLine HP 1398, decided on 30-08-2019]

Case BriefsHigh Courts

Sikkim High Court: The Bench of Vijai Kumar Bist, CJ, disposed of a transfer petition in which the District Judge, Special Division- I, Sikkim wanted to recuse himself from a case as his father had appeared in respect of the same subject-matter.

District Judge had passed an order while referring the matter to High Court on being informed that his father had appeared for the same subject matter involved in the appeal for the State-respondent in the said case.

The High Court on considering the facts and circumstances of the case, referred to the decisions of Supreme Court in Supreme Court Advocates-On-Record Assn. v. Union of India, (2016) 5 SCC 808,

“A Judge can recuse a matter, if a Judge has a financial interest in the outcome of a case. In such cases, he is automatically disqualified from hearing the case. In cases where the interest of the Judge is other than financial, then the disqualification is not automatic but an enquiry is required where the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension”.

Another decision of the Apex Court relied on by the Court was, Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714, in this case, the Supreme Court held that, it cannot be said simply because the learned Judge whilst at the Bar was a Standing Counsel for Municipal Corporation, he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity.

Therefore, the Court while concluding its decision, stated that the ground mentioned of District Judge’s father appearing for the same subject matter earlier was no ground for recusal from the case as, the District Judge was at no point involved in any manner with the case, he was not appearing for any of the parties.

Father of District Judge appeared in his private capacity and District Judge had nothing to do with the said case.

When can a Judge recuse?

  • A Judge can recuse when he or his family member’s interest is involved in the case.
  • He can recuse when his close relative is a party in the
  • If one of the parties is known to him and is closely associated with him.
  • He can also recuse if he had earlier appeared as an Advocate for one of the parties.
  • If earlier any legal opinion was given by a Judge in the matter or has financial interest in the litigation, he can recuse.

In view of the above, application sent by District Judge, Special Division-I, Sikkim was rejected and transfer petition was disposed of. [Mahesh Chettri v. State of Sikkim, 2019 SCC OnLine Sikk 15, Order dated 23-03-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: The Bench of H.S. Madaan, J., allowed an application seeking transfer of Petition under Section 9 of the Hindu Marriage Act, 1955 to the Court of competent jurisdiction at Gurugram.

The facts of the case are there was a divorce proceeding going on between the parties. The petitioner contended that she was aged about 23 years and was to take care of infant child of four months and that she did not have any source of income and had filed an application under Section 125 CrPC against her husband-respondent seeking maintenance. Under such circumstances, she contended that it was difficult for her to travel from Gurugram where she was residing with her parents to Ferozepur Cantt to attend the dates of hearing in the Court there.

Respondent contended that the personal appearance of the petitioner was not required in the petition under Section 9 of the Hindu Marriage Act and she could be represented through counsel there, therefore, the application should be dismissed.

That Court, in view of the facts and circumstances of the case, allowed the application. [Ekta Nagpal v. Yashveen Kumar, 2019 SCC OnLine P&H 17, decided on 08-01-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Tarlok Singh Chauhan, J., allowed a petition filed under Article 227 of the Constitution and Section 24 CPC filed on behalf of the petitioner-wife for transfer of the case; considering the inconvenience caused to her.

The case related to a marriage dispute between the petitioner-wife and the respondent-husband. The wife filed the present petition for transfer of the case filed by the husband for divorce, from the Court of District Judge at Mandi to the Court of District Judge at Kullu; on the ground that the petitioner had very limited source of income and she was residing with her parents at Kullu. Thus, she was not in a position to attend the Court at Mandi.

Relying on various decisions of the Supreme Court, the High Court held that,

“the broad consensus that emerges is that in dispute of the present kind where the petitioner is residing at her parental house at Kullu, it is her convenience that is required to be considered over and above the inconvenience of the husband, who is stated to be working as plumber”.

Accordingly, the petition was allowed and the above-mentioned case pending adjudication before District Judge at Mandi was transferred to the Court of District Judge at Kullu. [Dharmi Devi v. Manohar Lal, 2018 SCC OnLine HP 402, order dated 9.4.2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal, New Delhi: Cyrus Investment, the petitioners filed an application under Rule 11, read with Rule 16 of the NCLT Rules, 2016 with a prayer for transfer/reassignment of the Company Petition No. 82/2016 pending before the NCLT, Mumbai Bench to any other appropriate Bench other than the Bench comprising Shri B.S.V. Prakash Kumar, Member (J) and Shri V. Nallasenapathy, Member (T).

The appellants Cyrus Investments Pvt. Ltd. and Sterling Investment Corporate Pvt. Ltd., both shareholders of 1st Respondent Company Tata Sons Limited, had earlier preferred Company Petition No. 82 of 2016 before the National Company Law Tribunal, Mumbai under Sections 241, 242 and 244 of the Companies Act, 2013 alleging continuing act of ‘Oppression & Mismanagement’ of members of 1st Respondent. The NCLAT, Mumbai Bench, holding that shareholding of 10% must be computed by including preference share capital along with equity share capital, granted waiver to the appellants’ entities falling in the filing criteria of having 10 per cent shares of Tata Sons so as to enable them to file application under Section 241.

Learned Senior Counsel for the appellants argued that the Mumbai Bench of the NCLT has already prejudged the facts specifically relating to the applicants and thus he apprehended by virtue of a reasonable inference that the same Bench would not be able to deal with the same issues fairly. Learned Senior Counsel for the respondents stated that there is active concealment on the part of the applicants as they want to opt for the relief by forum shopping.

While adjudicating the question on whether any case is made out for the transfer of proceedings from the NCLT, Mumbai Bench to any other appropriate Bench at the Delhi forum, the Tribunal explicitly held that there is no rule of universal application that if a finding has been recorded while discussing a preliminary issue, then such a judge is disqualified to hear the matter. Dismissing the plea of transferring the petition to any other Bench instead of NCLT, Mumbai Bench, the Tribunal held that the appeal was devoid of any merit, thereby, imposing a penalty of Rs. 10 lakh to be borne equally by Mr. Mistry’s two investment firms. [Cyrus Investment v. Tata Sons Ltd., 2017 SCC OnLine NCLT 1257, decided on 6.10.2017]