2000 JTR(SC) 46
2000 2 AllCJ 903 ; 2000 2 ICC 638 ; 2000 3 JT 401 ; 2000 WBLR 300 ; 2000 6 Supreme 34301 ; 2000 7 Supreme 565
2000(7) Supreme 565
SUPREME COURT OF INDIA
S.P. Bharucha, V.N. Khare and S.S. Mohammed Quadri, JJ.
Keya Ankan Saha -Appellant
versus
Ankan K. Saha -Respondent
Transfer Petition (C) No. 222 of 1999
Decided on 10-1-2000
Act
Referred
:CIVIL PROCEDURE CODE : S.25
CONSTITUTION OF INDIA : Art.139(a)
(A) The Civil Procedure Code, Section 25, read in conjunction with Article 139(a) of the Constitution of India, provides the jurisdictional and procedural framework for the transfer of matrimonial proceedings to ensure access to justice. In the present case, these provisions empower the court to consider the practical hardships faced by a spouse, particularly where that party lacks an independent income, is residing far from the forum, and would face significant personal and financial impediments to defending the suit in a distant location. The constitutional mandate under Article 139(a) guides the interpretation of Section 25 to enforce the right of access to courts, and in doing so, allows for the transfer of the proceedings to a location where the affected party can effectively participate without abandoning the litigation.
(B) Key legal principles include the principle of natural justice requiring that a party must have a reasonable opportunity to be heard, the principle of avoiding unnecessary hardship in the prosecution of legal proceedings, and the discretionary power of the court to transfer cases to ensure convenience and substantial justice.
Facts of the case:
The wife filed a petition seeking the transfer of a divorce petition instituted by her husband. She stated that she is residing in Alipore, Calcutta, with her three-year-old son, is without an independent source of income, and cannot afford to travel to Bombay to defend the proceedings. She also noted that her father is old and unable to accompany her. The husband contended that he is employed and that she could seek assistance from a legal aid cell, an argument which the court found insufficient as it overlooked her need to travel to Bombay for giving instructions and evidence.
Findings of Court:
The court found that the circumstances of the case revealed a substantial impediment to the wifes ability to defend the suit in Bombay. It concluded that the transfer petition should be allowed to avoid subjecting the wife to unnecessary hardship and to ensure that she has a fair opportunity to present her case.
Issues:
Whether a divorce petition can be transferred to a court more convenient for a spouse who lacks the financial means to travel, and whether the availability of legal aid alone suffices when personal attendance and consultation with counsel are required.
Ratio Decidendi:
The court held that the test for transfer is the convenience of the parties and the ends of justice, and where a party is economically disadvantaged and faces practical barriers to participation, the court must exercise its discretion to transfer the proceedings to a location where the party can effectively appear.
Result:
The divorce petition was transferred from the Civil Judge, Thane, Bombay, to the District Judge, Alipore, Calcutta, with no order as to costs.
(A) The Civil Procedure Code, Section 25, read in conjunction with Article 139(a) of the Constitution of India, provides the jurisdictional and procedural framework for the transfer of matrimonial proceedings to ensure access to justice. In the present case, these provisions empower the court to consider the practical hardships faced by a spouse, particularly where that party lacks an independent income, is residing far from the forum, and would face significant personal and financial impediments to defending the suit in a distant location. The constitutional mandate under Article 139(a) guides the interpretation of Section 25 to enforce the right of access to courts, and in doing so, allows for the transfer of the proceedings to a location where the affected party can effectively participate without abandoning the litigation.
(B) Key legal principles include the principle of natural justice requiring that a party must have a reasonable opportunity to be heard, the principle of avoiding unnecessary hardship in the prosecution of legal proceedings, and the discretionary power of the court to transfer cases to ensure convenience and substantial justice.
Facts of the case:
The wife filed a petition seeking the transfer of a divorce petition instituted by her husband. She stated that she is residing in Alipore, Calcutta, with her three-year-old son, is without an independent source of income, and cannot afford to travel to Bombay to defend the proceedings. She also noted that her father is old and unable to accompany her. The husband contended that he is employed and that she could seek assistance from a legal aid cell, an argument which the court found insufficient as it overlooked her need to travel to Bombay for giving instructions and evidence.
Findings of Court:
The court found that the circumstances of the case revealed a substantial impediment to the wifes ability to defend the suit in Bombay. It concluded that the transfer petition should be allowed to avoid subjecting the wife to unnecessary hardship and to ensure that she has a fair opportunity to present her case.
Issues:
Whether a divorce petition can be transferred to a court more convenient for a spouse who lacks the financial means to travel, and whether the availability of legal aid alone suffices when personal attendance and consultation with counsel are required.
Ratio Decidendi:
The court held that the test for transfer is the convenience of the parties and the ends of justice, and where a party is economically disadvantaged and faces practical barriers to participation, the court must exercise its discretion to transfer the proceedings to a location where the party can effectively appear.
Result:
The divorce petition was transferred from the Civil Judge, Thane, Bombay, to the District Judge, Alipore, Calcutta, with no order as to costs.
ORDER
This is a transfer petition filed by the wife for transfer of a divorce petition filed by the respondent-husband in the court of the Civil Judge, Thane, Bombay. It is the case of the wife that she is staying with her three-year old son at Alipore, Calcutta with her maternal uncle. She is without an independent source of income so that she cannot spend on travelling up and down to defend the divorce proceeding in Bombay nor in there any place for her to stay there. Her father is old and cannot afford to accompany her. It is also pointed out that she had filed maintenance proceedings in Alipore which were contested by the respondent-husband. It is contended on behalf of the husband that he is working while she is not and that she can contact the appropriate legal aid cell to defend her in Bombay. The submission overlooks the fact that she would have to go to Bombay to give instructions and to give evidence.
2. We think that, it the circumstances, the transfer petition should be allowed. Marriage Petition No. A-189 of 1998 pending in the court of the Civil Judge, Thane, Bombay shall stand transferred to the court of the District Judge, Alipore, Calcutta, who may decide the same himself or assign it for trial to an another competent court.
3. No order as to costs.
Petition allowed.
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