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2010 (3) Supreme 689
SUPREME COURT OF INDIA
Altamas Kabir and Cyriac Joseph, JJ.
Vinisha Jitesh Tolani @ Manmeet Laghmani — Petitioner
versus
Jitesh Kishore Tolani — Respondent
Transfer Petition (Civil) No.1127 of 2008
Decided on : 28-04-2010
Code of Civil Procedure,1908- Section 25- Petition filed by wife of respondent under Section 25 of CPC for transfer of Matrimonial Petition pending before Civil Judge, Senior Division, at Vasco-da-Gama, Goa, to a Court of competent jurisdiction in Delhi- Submissions made by respondent husband that the annulment proceedings cannot be heard outside the State of Goa in view of existing laws which made the Civil Code and laws relating to marriage applicable to all persons residing within the State of Goa held unsustainable-Sections 5 and 6 of the Goa, Daman & Diu (Administration) Act, 1962, indicate that Central Government has the authority to extend enactments applicable to the rest of the country-Hence even if it were to be held that it was the customary law in Goa which would prevail over the personal law of the parties, same could not be a bar to the transfer of the matter outside the State of Goa to any other State- Even applying the principles of Private International Law, bearing in mind various personal laws in this country, even though spouses are domiciled in Goa in respect of a marriage performed outside Goa but in any other State of the Union, they would be governed by their personal laws in so far as dissolution of marriage is concerned- Notwithstanding the fact that marriage between the parties had been conducted in Goa, the same having been conducted under their personal laws and under Hindu rites and traditions,claim of the petitioner held justified so as to be allowed - Transfer Petition allowed directing that Matrimonial Petition pending in the Court of Civil Judge, Senior Division, at Vasco-da-gama, Goa, be transferred to Family Court at Tis Hazari, Delhi, for disposal, in accordance with law. (Paras 14 to 16)
Facts of the Case :
Present Petition has been filed by wife of respondent under Section 25 of Cpc for transfer of Matrimonial Petition pending before Civil Judge, Senior Division, at Vasco-da-Gama, Goa, to a Court of competent jurisdiction in Delhi.
Findings of the Court :
As far as the Civil Code as enacted on 25.12. 1910, and the provisions of the law of Marriage as a Civil Contract in Goa, Daman and Diu which came into force on 26.05. 1911, was concerned, no justification was found in contention of respondent husband that all marriages performed within the territory of Goa unless registered should be void. Said provision was altered by decree of 22.1.1946, which restored the validity of both Catholic marriages and Hindu marriages. Two Hindus,therefore, could contract a marriage according to Hindu religious rites or by way of a civil Marriage. Section 2 of the Hindu Marriage Act extends the operation of the Act to the whole of India except Jammu and Kashmir and also applies to Hindus domiciled in the territories to which the Act extends who are outside the said territories.In other words, provisions of Hindu Marriage Act, 1955, would be applicable to petitioner’s case and could be heard by any Court having jurisdiction within the territories to which it applies. Submissions made by respondent husband that the annulment proceedings cannot be heard outside the State of Goa in view of existing laws which made the Civil Code and the laws relating to marriage applicable to all persons residing within the State of Goa were held unsustainable.Sections 5 and 6 of the Goa, Daman & Diu (Administration) Act, 1962, indicate that Central Government has the authority to extend enactments applicable to the rest of the country.Hence Even if it were to be held that it was the customary law in Goa which would prevail over the personal law of the parties, the same could not be a bar to the transfer of the matter outside the State of Goa to any other State. Even applying the principles of Private International Law, bearing in mind various personal laws in this country, even though spouses are domiciled in Goa in respect of a marriage performed outside Goa but in any other State of the Union, they would be governed by their personal laws in so far as dissolution of marriage is concerned. Notwithstanding the fact that marriage between the parties had been conducted in Goa, the same having been conducted under their personal laws and under Hindu rites and traditions, claim of the petitioner was held justified so as to be allowed .
The petitioner wife filed a transfer petition under Section 25 of the Code of Civil Procedure seeking transfer of the husband's matrimonial petition for annulment of marriage (pending before the Civil Judge, Senior Division at Vasco-da-Gama, Goa) to a competent court in Delhi. (!) (!) [1000484600001] The marriage was solemnized between the parties on 25th October 2007 according to Hindu rites and registered civilly on 15th November 2007 before the Civil Registrar of Mormugao Taluka, Vasco-da-Gama, Goa; the wife, originally from Afghanistan with family ties and prior residence in Delhi, faced significant hardship contesting proceedings in Goa due to lack of local support, her residence in Delhi/UK, and ex-parte progress of the case despite her changed address.[1000484600001][1000484600002][1000484600003][1000484600004][1000484600005][1000484600006] The wife argued for transfer emphasizing her convenience, given her decade-long Delhi connections and matrimonial nature of proceedings favoring the wife's ease.[1000484600006][1000484600007] The husband opposed, contending that Goa's Civil Code (treating marriage as a civil contract) and family laws under the Goa, Daman & Diu Administration Act, 1962 (Sections 5-6) mandated exclusive jurisdiction in Goa courts for such matters, with unregistered religious marriages potentially void.[1000484600008] (!) (!) (!) [1000484600009][1000484600010] The Court rejected the husband's jurisdictional objections, holding that post-1946 decree, Hindu marriages by religious rites are valid in Goa; Section 2 of the Hindu Marriage Act, 1955 applies pan-India (except J&K) to Hindus including those domiciled there but litigating elsewhere; Central Government powers under Sections 5-6 of the 1962 Act enable extension of national laws; and even under private international law principles, personal laws govern dissolution irrespective of domicile or marriage location in Goa when performed under Hindu rites.[1000484600011][1000484600012][1000484600013] The transfer petition was allowed, directing the Goa matrimonial petition to the Family Court at Tis Hazari, Delhi for disposal; the husband's related criminal transfer petition was dismissed.[1000484600014][1000484600015] (!)
JUDGMENT
Altamas Kabir, J. —
1.This is a petition filed by the wife of the respondent under Section 25 of the Code of Civil Procedure for transfer of Matrimonial Petition No.9 of 2008 pending before the Civil Judge, Senior Division, at Vasco-da-Gama, Goa, to a Court of competent jurisdiction in Delhi.
2.The case of the petitioner is that she is a Sikh by religion and was born in Kabul in Afghanistan on 16th October, 1984. Till January, 1998, she pursued her primary education in Afghanistan. Her family shifted to Delhi in the month of February, 1988, where she continued to live with her grandparents. She thereafter continued her studies at the Guru Harkrishan Public School, Nanak Piao, Rana Pratap Bagh, Delhi, and continued her education there till 1999.
3.The petitioner’s father who had stayed behind in Kabul on account of his business commitments till 1992, finally shifted to London where he was granted Afghan Refugee Asylum by the United Kingdom. In May, 2001, the petitioner also migrated to United Kingdom where her parents had been given British Nationality.
4.While in the United Kingdom, the petitioner started her own business and was self-employed and independent till she got married to the respondent in October, 2007. The respondent is a partner in a construction business with his father under the name and style of Tolani Developers at Panaji, Goa.
5.It appears that the petitioner met the respondent through her brother-in-law who were both Merchant Naval Officers and, thereafter, talks of marriage between the petitioner and the respondent were commenced. The Rokka ceremony was performed at London and the marriage was fixed in New Delhi. However, on the insistence of the respondent the marriage was performed before the Civil Registrar of Mormugao Taluka, Vasco-da-Gama, Goa, on 15th November, 2007 and the same was registered in the presence of three witnesses arranged by the respondent. Thereafter, the petitioner along with the respondent shifted to a flat in Kamat Place, Mangoor Hill in Vasco-da-Gama, Goa. According to the petitioner, her troubles began thereafter and in the month of February, 2008, she was informed by the respondent and his parents that she had to go to London for completion of certain formalities as the marriage registration had not been accepted by the authorities and the marriage was a nullity according to them. Ultimately, on arriving at London, she was informed by the Indian Consulate that since the marriage had been performed within India, the formalities had to be completed within India itself.
6.Several incidents occurred thereafter which caused her to commute between the United Kingdom and India till finally she took up residence in a rented accommodation in New Delhi. During the said period the petitioner was served with certain papers from the Court and she had no option but to engage a lawyer to obtain a copy of the petition filed by the respondent to enable her to protect her rights. To her surprise she found that the matter had been proceeded with ex-parte, without even serving summons to her, showing her address as Flat No.12, 2nd Floor, Kamat Place, Mangoor Hill, Vasco-da-Gama, Goa, although, it was within the knowledge of the respondent that she no longer resided in the said flat. The petitioner also discovered that proceedings for declaring her marriage to be a nullity had been commenced while she was in London and much before she returned to India after her marriage. Even when the petitioner was in India, she was not informed about the pendency of the said proceedings during her stay between April, 2008 to July, 2008. This compelled her to fight for her rights while staying at Delhi, but it was near impossible to contest the litigation filed at Goa, as a result of which the petitioner was compelled to file the present transfer petition.
7.Appearing in support of the Transfer Petition, Mr. S.K. Sharma, learned Advocate, submitted that the marriage between the petitioner and the respondent had
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