Summary
A wife sought transfer of her husband's divorce petition from the Family Court at Mangaluru to Mumbai, where she lived with her parents; the husband opposed and asked for dissolution of the marriage under Article 142, mediation having failed. The Supreme Court dismissed the transfer petition, observing that leniency towards wives in such petitions may be misused and each case turns on its facts: the wife was a permanent resident of Canada who attended mediation online from there, there was no child, and both parties were educated and employed, so she could travel or seek exemption. It declined to invoke Article 142 since the parties had lived together only 40 days.
Issues
- Whether a matrimonial proceeding filed by the husband should be transferred to the city where the wife resides merely because she is the wife, where she is a permanent resident of Canada, well educated and employed, and there is no child.
- Whether the Supreme Court should dissolve the marriage under Article 142 of the Constitution on the ground of irretrievable breakdown in a transfer petition where the parties lived together only briefly and no evidence has been led.
Provisions considered
- Section 25, Code of Civil Procedure, 1908The transfer petition was filed under this provision read with Order XXXVI-B of the Supreme Court Rules; the Court found no case made out for transfer on the facts. (¶¶ 1, 20)
- Article 142, Constitution of IndiaNot a fit case for dissolving the marriage; the judgments relied upon concerned old disputes that had travelled through the courts with evidence on record, unlike the present 40-day cohabitation. (¶¶ 9, 21)
Held
- Though the Court normally accepts transfer prayers by wives in matrimonial cases, this leniency may be misused, as noted in Anindita Das v. Srijit Das, and each case must be considered on its own merits. (¶ 18)
- No case for transfer is made out where the wife is a permanent resident of Canada who must be travelling abroad regularly and attended the entire mediation online from Canada, there is no child to be cared for, and both parties are well educated and in their own jobs; she can travel to Mangaluru or seek exemption from appearance, and may apply to the trial court for travel expenses, no direction for expenses being warranted on the present material. (¶¶ 19, 20)
- It is not a fit case for exercising power under Article 142 to dissolve the marriage, as the parties lived together only 40 days and it takes time to settle down in marriage; the decisions in R. Srinivas Kumar and Munish Kakkar are distinguishable because there the divorce proceedings had been decided below on evidence in long-standing disputes. (¶ 21)
Result
Transfer petition dismissed; the divorce petition remains before the Family Court at Mangaluru, with liberty to the petitioner-wife to apply there for reimbursement of travel expenses and guidance on video-conference appearance as laid down in Santhini v. Vijaya Venketesh.