Priority for wife | Wbactive

A Supreme Court panel recently favored women’s convenience when deciding a transfer request.

The court on November 3 granted a wife’s request to move a marital dispute from Pune to Patiala. The then Chief Justice of India (CJI), Judge UU Lalit, who chaired the two-judge bench, said: “I see the vigorous submission from you. Unfortunately, the ethos that has developed at this court is that the woman’s convenience is paramount.”

Although CJI UU Lalit recognized at the time that women in today’s world cannot claim to need travel companions, he was not inclined to go against the established practice of favoring their convenience in resolving transfer requests. The jury, which also included Judge Bela M Trivedi, found that the wife’s comfort came first in matrimonial disputes, according to the Court’s settled case law. Despite fierce opposition from the husband’s lawyer, who claimed that allowing the application would set a bad precedent and all women would use it as ID, the court granted the application.

The woman’s comfort in marital disputes has always been paramount and this has been made clear in various judgments. On October 18, 2022, High Court Judge Dinesh Kumar Sharma in Delhi allowed the case of a 68-year-old woman to be transferred. The Court said: “The exercise of jurisdiction in the assignment of the application, particularly in matrimonial disputes, must be done in such a way as not to cause inconvenience to either party. It is a well-established practice that in such matters the wife’s convenience must be kept more in mind. The application of the applicant wife can only be rejected for serious reasons.”

In another recent order, Bombay High Court Justice SM Modak, transferring a matrimonial dispute, noted that a woman’s inconvenience must be given more priority because the law sees women as belonging to the weaker section of society and needing them more Protection.

In 2021, Arun Monga, a judges chamber of the Punjab and Haryana High Court ruled that the right to choose the location of a court to decide a marital dispute belongs to the wife. The court said the ethos as expressed in Article 51-A of the Constitution provides that it will be the fundamental duty of every Indian citizen to uphold the dignity of women.

However, in Krishna Veni Nagam vs Harish Nagam (2017), the Supreme Court also considered men’s perspectives when it ruled: “One cannot ignore a husband’s problem when the case is transferred to the wife because of genuine difficulties. It can be difficult for the husband to contest the proceedings in a place that is convenient for the wife.

Therefore, a transfer is not always an acceptable solution for both parties. It may be appropriate that available video conferencing technology be used when both parties face the same difficulties and there is no convenient location for both parties. We are aware that video conferencing is now available in every district in the country. In any event, full use should be made of this facility, wherever available, and all High Courts should issue appropriate Administrative Instructions to regulate the use of videoconferencing for specific categories of cases. Matrimonial cases where one of the parties resides outside the jurisdiction of the court is one of these categories. Whenever one or both parties request the use of videoconferencing, the proceeding can be conducted via videoconferencing, eliminating the requirement for the party to appear in person.”

The Supreme Court in Gayatri Mohapatra v. Ashit Kumar Panda (2003) even went so far as to dismiss the wife’s case. It turned out that she was a director in a company run by her mother and traveled from place to place. It therefore rejected her application for transfer, finding that it could not be established that she was unfit to travel and that the application for transfer could be made.

In Kanagalakshmi vs. A. Venkatesan (2004), the Supreme Court dismissed a wife’s application for transfer and accepted her husband’s objection that he would bear the expenses not only of the wife but also of her companion for her travel and stay at the place , on which the case was pending.

In Gargi Konar v. Jagjeet Singh (2005), the court held that the sole reason given by the wife in the transfer request was not valid. She had stated that she was a helpless woman, totally dependent on her father, and that she did not have the financial resources to contest the case in Bhatinda, Punjab.

The Supreme Court in Anindita Das vs. Srijit Das (2006) found that the leniency shown by the court towards ladies in transfer matters was often abused and taken advantage of by women. The court found that it had a duty to consider each petition on its merits.

In Maneka Sanjay Gandhi vs. Rani Jethmalani (1979), the Supreme Court stated: “Ensuring a fair trial is the supreme principle of jurisprudence, and the central criterion which the court must take into account when making a request for surrender is this is not a party’s hypersensitivity or relative laziness, or the ready availability of legal services, or similar mini-complaints. Something more substantial, more compelling, more menacing is required from the point of view of public justice and its entourage if the Court is to exercise its delegated powers. This is the main principle, although the circumstances can be numerous and vary from case to case.”

The Supreme Court in the case of Dr. Subramaniam Swamy v. Radhakrishna Hegde (1990) held that the primary consideration for transferring a case under Section 25 of the Code of Civil Procedure must be the requirement of justice. The Supreme Court stated: “The question of expediency would depend on the facts and circumstances of each case, but the primary consideration in the exercise of power must be to serve the ends of justice. When more than one court has jurisdiction under the Code to hear the claim, the plaintiff has the dominus litis right to choose the court and the defendant cannot request that the claim be heard in a particular court of his convenience becomes. The mere convenience of the parties, or one of them, may not be sufficient for the exercise of power, but it must also be shown that trial at the chosen forum leads to a denial of justice. Cases are known where a party seeking justice chooses a forum most unfavorable to the opponent in order to deny that party a fair hearing.”

The court went on to say that Parliament therefore gave that court discretion to transfer the case from one court to another if deemed appropriate to meet the purposes of justice.
What matters in the end is whether justice was done to the woman and the man.

—By Shivam Sharma and India Legal Bureau

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