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2023 DIGILAW 1002 (MP)

Nishitakunwar W/o Digvijaysingh v. Digvijaysingh S/o Shri Samantsinghji Chouhan

2023-12-15

SUBODH ABHYANKAR

body2023
ORDER : 1. Heard finally, with the consent of the parties. 2. This application has been filed by the applicant/wife under Section 24 read with Section 151 of CPC for transfer of Case No. RCSHM No. 71 of 2023 (Digvijaysingh Chouhan vs. Smt. Nishitakunwar Chouhan) pending in the Court of Principal Judge, Family Court, Neemuch to the Court of Family Court, Indore. 3. In brief, the facts of the case are that the marriage of applicant/wife and the respondent/husband was solemnized on 29.01.2019 as per the hindu rites and out of this wedlock, they have no issue. According to the applicant, after the marriage, the respondent and his family members have started treating the applicant with cruelty and thus, the applicant is residing separately from the respondent since last around one year. On account of the matrimonial discord, the respondent/husband has also filed an application for divorce in the Family Court at Neemuch under Section 13 of Hindu Marriage Act, 1955, which is sought to be transferred by the applicant by way of this application. 4. Counsel for the applicant has submitted that the applicant’s father has already died and she is living with her widow mother along with younger sister and brother and since the distance from Indore to Neemuch is around 300 kms, it would be extremely difficult for the applicant to participate in the aforesaid proceedings, which would result in around 8 hours time to travel Neemuch and back, and since she has no other relatives in Neemuch, it would be extremely difficult for her to manage her affairs there and the respondent/husband is also not paying her any alimony towards her maintenance. 5. The aforesaid application is opposed by the respondent husband, although no separate reply has been filed, however, counsel for the respondent has placed on record some documents including a notice issued at the instance of the applicant as also a letter issued by the father of the respondent apprehending that their daughter-in-law, the applicant herein, may lodge any false case against them, who has also threatened them of dire consequences. It is also submitted that the applicant is also organizing events in the various parts of the Country. The screenshot of her Instagram profile is also placed on record. It is also submitted that the applicant is also organizing events in the various parts of the Country. The screenshot of her Instagram profile is also placed on record. It is also submitted that the applicant has already filed a case under the provisions of Domestic Violence Act against the respondent at Indore and is adopting all the tactics to further harass the respondent. Thus, it is submitted that no case for interference is made out. 6. There is no rebuttal of these documents by the applicant. 7. Heard. So far as the transfer of a case involving the matrimonial dispute is concerned, the Supreme Court has had the occasion to reflected upon the same in the year 2017, taking into account the latest technological advancements (available at that time) in the case of Krishna Veni Nagam vs. Harish Nagam, (2017) 4 SCC 150 . The relevant paras of the same read as under: “13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network vs. W.S.G. Cricket Pte. Ltd. this Court observed: “19. In Spiliada Maritime case the House of Lords laid down the following principle: “The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.” The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried.” (Emphasis in original) Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed. 14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing. 15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. In several cases, this Court has directed recording of evidence by video conferencing. 15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution. 16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/ information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts. 17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice. 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. 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. 19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No. 179A/2013 under Section 13 of the Act titled Harish Nagam vs. Krishna Veni Nagam pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith. 20. The Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action.” (Emphasis supplied) 8. Having considered the rival submissions, perusal of the documents filed on record, and testing the same on the anvil of the decision rendered by the Supreme Court in the case of Krishna Veni Nagam (supra), this Court is of the considered opinion that since the divorce case has been filed by the respondent/husband at Neemuch, where the video conferencing facility is also available, and further considering the fact that the applicant herself is a working woman residing at Indore, she may contest the matter through video conferencing mode as directed by the Supreme Court in the case of Krishna Veni Nagam (supra). 9. 9. In such circumstances, this court is of the considered opinion that there is no need to transfer the divorce case from Neemuch to Indore and it is directed that the applicant shall contest the aforesaid matter pending in the Court of Principal Judge, Family Court, Neemuch through video conferencing without going to Neemuch. 10. The learned judge of the Family Court at Neemuch is requested to proceed further in accordance with law in the light of the decision in the case of Krishna Veni Nagam (supra). 11. With the aforesaid direction, the application stands disposed of.