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2018 DIGILAW 763 (RAJ)

ASMA PARVEEN v. JAVED BHATI

2018-03-14

PRAKASH GUPTA

body2018
JUDGMENT AND ORDER : Prakash Gupta, J. The instant transfer application under section 24 of the CPC has been filed by the applicant-petitioner, seeking transfer of case no. 630/2016 titled as Mohd. Javed v. Smt. Asma Parveen from the Family Court, Jhunjhunu to Family Court, Ajmer. 2. It is stated in the transfer application that the non-applicant husband filed a petition for restitution of conjugal right against the applicant-wife before the Family Court at Jhunjhunu, which was registered as case no. 630/2016. The applicant-wife filed criminal complaint against the non-applicant husband under section 12 read with sections 17, 18, 19, 20 and 23 of the Prevention of Women from Domestic Violence Act. Acting on the complaint, cognizance was taken against the accused persons and they were summoned. 3. It is the case of the applicant-petitioner that she is currently staying with her parents in Ajmer and since she does not have any independent source of income, she cannot bear the expenses to travel from Ajmer to Jhunjhunu for every hearing. Being not only young but also Pardanaseen, she cannot travel from Ajmer to Jhunjhunu all alone and without a male chaperon belonging to her own family and for doing so, she would have to incur additional expenses. She also contended that the non-applicant/husband is financially stable and earns enough to be able to afford travelling from Jhunjhunu to Ajmer. 4. No reply has been filed to the instant transfer application on behalf of the non-applicant-husband. 5. It is the contention of the learned counsel for the applicant-wife that it is well-entrenched and established law that a proceeding should ordinarily be transferred from one court to another taking into account the convenience of the female litigant and the courts should make sure that undue and unnecessary hardships or inconvenience is not caused to female litigants. 6. On the other hand, Mr. M.K. Jain, counsel appearing on behalf of the non-applicant husband contended that no hardship would be cause to the applicant-wife even if the case is allowed to be continued at Jhunjhunu. The criminal case filed by the applicant-wife at Ajmer was filed by her after the petition for restitution of conjugal rights had already been filed by the non-applicant-husband before that. Therefore, the transfer application liable to be dismissed. The counsel further contended that the law regarding transfer applications is not the same anymore. The criminal case filed by the applicant-wife at Ajmer was filed by her after the petition for restitution of conjugal rights had already been filed by the non-applicant-husband before that. Therefore, the transfer application liable to be dismissed. The counsel further contended that the law regarding transfer applications is not the same anymore. It is trite that earlier the courts were required to give more weight to the convenience of the female litigants. However, the Hob'ble Supreme Court has interpreted the law related to transfer applications differently in a recent decision. To support his contention, the counsel relied on the decision of the Supreme Court given in Santhini v. Vijaya Venketesh, (2018) 1 SCC 1 . 7. Heard. Considered. 8. It is an undisputed fact that the applicant-wife in the instant transfer petition is not only young and a Pardanasheen lady but she also does not have any independent source of income. In the absence of a stable income, it would cause her great hardship if the proceedings are allowed to continue at Jhunjhunu since she is not in a position to bear her travel expenses. It used to be a well-established and settled legal position that while going into the merits of a transfer application, courts are required to give more weight and consideration to the convenience of the female litigants and transfer of legal proceedings from one court to another should ordinarily be allowed taking into consideration their convenience and the courts should desist from putting female litigants under undue hardships. However, it has been contended by the learned counsel for the non-applicant husband that the position of law is not the same anymore and the Hon'ble Supreme Court has interpreted the law related to transfer applications differently in a recent case. Hence, it is essential to briefly discuss the ratio decidendi of the said decision. 9. A three-judge bench of the Hon'ble Apex Court while deciding a transfer application in the case of Santhini referred to an earlier judgment given in the case of Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150 . In Krishna Veni, the Hon'ble court while deciding a transfer application expressed its concern about the large number of such applications filed before the Supreme Court and High Courts across the country. In Krishna Veni, the Hon'ble court while deciding a transfer application expressed its concern about the large number of such applications filed before the Supreme Court and High Courts across the country. Keeping into consideration the hardships caused to both the sides on account of such transfer applications being filed before the Supreme Court and High Courts, especially taking into consideration the cost of litigation in these courts, the division bench delved into the question as to whether it was possible to chalk out a different plan and look for alternatives. It was in this backdrop that the Division Bench passed a general direction that in matrimonial or custody matters, to avoid causing hardship to the defendant-respondent, alternative remedies and safeguards must to restored to, one such remedy being video conferencing. The relevant paragraph containing the said observations by the Apex Court are reproduced below: "18 We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- (i) Availability of video conferencing facility. (ii) Availability of legal aid service. (iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. (iv) E-mail address/phone number, if any, at which litigant from out station may communicate." 10. Referring to the said decision, a three-judges bench of the Hon'ble Court delved into the issue as to whether a general order could be passed, to the effect that where a husband files matrimonial proceedings at a place where the wife does not reside, the court concerned should entertain such petitions only on the condition that the husband makes appropriate deposits to bear the expenses for the wife and the alternative of video conferencing and communication via e-mails etc. are possible. are possible. After a detailed analysis of the object of the Family Courts Act of 1984 and several rulings rendered by the Supreme Court related to the equality and dignity of women, the three-judges bench overruled the decision given Krishna Veni to the extent that in a transfer petition, video conferencing cannot be restored to by the court. The relevant observations by the court are reproduced below: "58. In view of the aforesaid analysis, we sum up our conclusion as follows:- 58.1 In view of the scheme of the 1984 Act and in particular section 11, the hearing of matrimonial dispute may have to be conducted in camera. 58.2 After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer. 58.3 After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct. 58.4 In a transfer petition, video conferencing cannot be directed. 58.5 Our directions shall apply prospectively. 58.6 The decision in Krishna Veni Nagam is overruled to the aforesaid extent." 11. Thus, it is clear without an iota of doubt from the observations of the Hon'ble Supreme Court that in a transfer application, videoconferencing cannot be directed by the court. The Supreme Court in the above discussed case nowhere commented about the well established rule that in transfer applications, the courts must accord greater weight to the convenience of the female litigants. In fact, the court ruled out the possibility of videoconferencing in such cases for no other reason but the convenience and consent of the wife/female litigant. Thus, the judgment relied on by counsel for the non-applicant-husband does not aid him in any manner. 12. It is expected of the counsels to be well-versed in the facts and the law laid down by the Hon'ble Supreme Court or High Courts in the cases and decisions on which they rely during their submissions. It is their bounden duty to not mislead the court, expecting that the arrows of case-laws stumbled upon by them during their slapdash research would hit the targets off courts incisive minds. It is their bounden duty to not mislead the court, expecting that the arrows of case-laws stumbled upon by them during their slapdash research would hit the targets off courts incisive minds. It is high-time that counsels stop thinking of courts and legal process as a mere instrument of eliciting money from the litigants. The courts may be flooded with cases but they are certainly not oblivious and unintelligent. Since, the counsel for the non-applicant-husband not only misled the court by citing a judgment which is no way helps him but also wasted the court's precious time. 13. Consequently, this transfer application is allowed and the case no. 630/2016 titled as Mohd. Javed v. Smt. Asma Parveen is transferred from the Family Court, Jhunjhunu to Family Court, Ajmer. Both the courts be informed accordingly. 14. Both the parties are directed to remain present in Family Court Ajmer on 05.05.2018.