1. Petition for transfer of matrimonial proceedings — Divorce petition filed by husband — Petition for restitution of conjugal rights filed by wife. (Para 1 , 2 , 3 , 4 , 5 , 19 )
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2023 Supreme(SC) 377
SUPREME COURT OF INDIA
RAJESH BINDAL, ARAVIND KUMAR, JJ.
Delma Lubna Coelho – Appellant
Versus
Edmond Clint Fernandes - Respondent
Transfer Petition (C) No. 1475 of 2021
Decided on : 18-04-2023
Important Points
IMPORTANT POINT
Transfer of Matrimonial Case – Each and every case has to be considered on its own merits.
Transfer of Matrimonial Case – Each and every case has to be considered on its own merits.
Subject
Transfer of Matrimonial Proceedings - Transfer of Case from Mangaluru to Mumbai
Act Referred
Headnote
Hindu Marriage Act,1955 – Section 21-A – Constitution of India – Article 142 – Transfer of Matrimonial Case – Marital discord between parties – Number of Transfer Petitions are filed in matrimonial cases, primarily by wives seeking transfer of matrimonial proceedings initiated by husband – This Court normally has been accepting prayer made while showing leniency towards ladies – May be this leniency was being misused by women – Each and every case has to be considered on its own merits – Divorce Petition has been filed by husband at Mangaluru where he resides with his aged parents – Thereafter, wife filed a petition for restitution of conjugal rights at Mumbai, Maharashtra – No case is made out for transfer of petition from Mangaluru, Karnataka to Mumbai, Maharashtra – Wife is a permanent resident of Canada – She must be travelling abroad regularly – There is no child born out of wedlock to be taken care of – Both parties are well educated and engaged in their own jobs and professions – She can travel to Mangaluru to attend hearing of case and can also seek exemption from appearance whenever required – This is not a fit case for exercise of power under Article 142 of Constitution of India as good sense may prevail on parties – They had lived together only for 40 days – It takes time to settle down in marriage – Petition dismissed. (Paras 14, 18, 19, 20, 21 and 23)
Facts of the case:
Present petition has been filed by the petitioner-wife seeking transfer of M.C. No. 331 of 2021 titled as “Dr. Edmond Clint Fernandes vs. Mrs. Delma Lubna Coelho” pending before the Family Judge at Mangaluru, Karnataka to the Family Court at Bandra, Mumbai, Maharashtra.
Findings of Court:
There was sufficient material on record and the ground on which marriage was dissolved in exercise of power under Article 142 of the Constitution of India, was irretrievable breakdown of marriage which otherwise is not a ground in the Hindu Marriage Act,1955 for dissolution of marriage.
Result : Appeal dismissed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. Shankar Divate, AOR
For the Respondent(s): Mr. Pai Amit, AOR Ms. Pankhuri Bhardwaj, Adv. Mr. Abhiyudaya Vats, Adv.
For the Petitioner(s): Mr. Shankar Divate, AOR
For the Respondent(s): Mr. Pai Amit, AOR Ms. Pankhuri Bhardwaj, Adv. Mr. Abhiyudaya Vats, Adv.
Table of Contents
2. Wife seeks transfer citing distance, language barrier, and employment risks — Husband opposes transfer and seeks dissolution of marriage based on irretrievable breakdown. (Para 6 , 7 , 8 , 9 )
3. Transfer denied as wife is a permanent resident abroad, well-educated, and attended mediation via video conferencing, making travel feasible or exemptions possible. (Para 17 , 18 , 19 , 20 )
4. Leniency in transferring matrimonial cases to wives is not absolute and must be balanced against the merits and specific circumstances of the parties. (Para 18 , 20 )
5. Petition for transfer of the matrimonial case dismissed. (Para 23 )
6. How does the court determine whether to transfer a matrimonial case filed by a husband to the wife's location?
While the court generally shows leniency towards wives in transfer petitions, each case is considered on its own merits, evaluating factors like the parties' education, financial status, residency, and ability to travel or appear virtually. (Para 18 , 20 )
7. When can the court exercise power under Article 142 of the Constitution to dissolve a marriage based on irretrievable breakdown?
The court may dissolve a marriage under Article 142 when there is sufficient material on record, typically after proceedings in lower courts have established a long-term dispute, rather than in cases where parties lived together for a very short duration. (Para 21 )
8. Can parties seek exemption from physical appearance or attend matrimonial hearings via video conferencing?
Yes, parties can seek exemption from appearance or utilize video conferencing for court proceedings, as guided by established judicial precedents. (Para 20 , 22 )
JUDGMENT :
Rajesh Bindal, J.
1. The present petition has been filed by the petitioner-wife seeking transfer of M.C. No. 331 of 2021 titled as “Dr. Edmond Clint Fernandes vs. Mrs. Delma Lubna Coelho” pending before the Family Judge at Mangaluru, Karnataka to the Family Court at Bandra, Mumbai, Maharashtra.
2. Learned counsel for the petitioner submitted that the parties met on Facebook in the month of December, 2019 and they got married on 05.12.2020 as per Christian rites and customs at Our Lady of Miracles Church, Mangaluru.
3. It is pleaded that after the marriage, the petitioner was living with the respondent at her matrimonial home at Mangaluru where she was illtreated, insulted and humiliated by the respondent and his family members. She was accused for each and everything and offensive language was used against her. The respondent, in the pretext of giving her a break for 10-15 days, booked a one-way ticket for the petitioner and sent her to Mumbai on 15.01.2021. Thereafter, he disconnected all relations with her. On 05.07.2021, after COVID-19 Pandemic restrictions were eased, the petitioner came back to Mangaluru. However, she was denied entry in her matrimonial home by the respondent and his family members. She was completely broken down. She approached the Police Station at Pandeshwar, Mangaluru and lodged a complaint.
4. The Superintendent of Police intervened and called respondent to the Police Station. The respondent stated that he has already issued a divorce notice and his petition seeking divorce is in the process of filing. Despite repeated requests made by the petitioner, the respondent did not mend his ways.
5. On 06.08.2021, she replied to the legal notice stating that she is ready and willing to come to her matrimonial house and wanted to live a happy married life. On 10.08.2021, she received summons of the Court along with copy of the divorce petition filed in the Family Court at Mangaluru.
6. Learned counsel for the petitioner submitted that she is living with her old aged parents at Mumbai. There is no one at her home to accompany her from Mumbai to Mangaluru to contest the petition, which is more than 1,000 km from Mumbai. She does not even know Kannada language. Whereas the respondent will not face any problem in case the petition is transferred to Mumbai (Maharashtra). The parties lived together only for a period of about 40 days. It is stated by the petitioner that if given an opportunity, she would try to reworkout the marriage. The petitioner was forced to take up job with a bank as the respondent refused to support her financially. In case, she frequently travels to Mangaluru to attend the hearings, she is at the risk of losing her job being fresher. It will not be possible for her to bear the cost as well.
7. On the other hand, learned counsel for the respondent submitted that though the parties had met on social media, one year prior to their marriage, she had even visited to Mangaluru after COVID-19 Pandemic/restrictions were eased and they met frequently. She was well aware of the family background of the respondent and also the status of his family. In fact, immediately after the marriage, the behaviour of the petitioner was not the same as was prior to the marriage. The respondent resides with his aged parents. He is a doctor by profession. The respondent is also the founder and CEO of a global health organization involved in philanthropic activities. Initially petitioner was proud of this but later on the attitude changed. The respondent also paid professional fees for engineering grade to ensure petitioner’s financial independence as desired by her even prior to their marriage. She now misbehaved with the respondent’s parents as she wanted to live a luxurious life. All positive points prior to the marriage were now negative.
8. In fact, the petitioner being a permanent resident of Canada, was habitual of that lifestyle. The marriage was just to spoil the life of the respondent though initially, it
