[2017] 5 S.C.R. 513

KRISHNA VEN! NAGAM

HARISH NAGAM

(Transfer Petition (C) No. 1912 of2014)

MARCH 09, 2017

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

Supreme Court - Directions - Transfer Petition - Alternative

to transfer of proceedings - Matrimonial matters and custody - Defendants/respondents located outside the jurisdiction of the court C where the proceedings are instituted - Held: The court, where proceedings are instituted, may'examine incorporating safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice - Order incorporating such safeguards may be sent along with the summons which are: (i) availability of video conferencing facility; (ii) availability of legal aid service;

(iii) deposit of cost for travel, lodging and boarding in terms of Or.XXV CPC; (iv) e-mail address/phone number, if any, at which litigant from out station may communicate - Code of Civil Procedure,1908 - Or.XXV, s.25 ~Administration of Justice - Hindu Marriage Act, 1955 - ss.13 and 19.

E Constitution of India - Art.39-A - Ignorance of parties about availability of legal services - Held: Legal aid committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee - Such panels ought to be notified on the websites of the legal service authorities.

Transfer Petition - Respondent-husband filed divorce petition

at Jabalpur, Madhya Pradesh - Petitionerwife sought tramfer of case from Family court, Jabalpur, Madhya Pradesh to Family court, Hyderabad, Andhra Pradesh - Held: In instant case, since matter pending for about three years, prayer for transfer allowed - If G parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation - Transferee court may conduct the proceedings or record evidence of the witness who are unable to appear in court by way of video conferencing.

H 513

Disposing of the transfer petition, the Court

HELD: 1. The doctrine of forum non conve11iens can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. However, transfer of proceedings is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. [Paras 13, 14) (520-

G-H; 521-A; 522-B)

2. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID.

D Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/ manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions.

E Similarly, a manager/information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts. [Para 16) (522-F-H; 523-A)

3. It is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings. It is therefore directed that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/ respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be: (i) Availability of video conferencing facility; (ii) Availability of legal

aid service; (iii) Deposit of cost for travel, lodging and boarding A in terms of Order :XXV CPC; (iv) E-mail address/phone number, if any, at which litigant from out station may communicate. [Paras

17 ,18] [523-B-E]

Anindita Das v. Srijit Das (2006) 9 SCC 197; Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC 255; Lalita A. Ranga v. Ajay Champa/al Ranga (2000) 9 SCC 355; Deepa v. Anil Panicker (2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000)10 SCC 350;

Leena Mukherjee v. Rabi Shankar Mukherjee (2002) 10 SCC 480; Nee/am Bhatia v. Satbir Singh Bhatia

(2004) 13 SCC 436; Soma Choudhury v. Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej Pal (2007) 15 SCC 597: (2008] 14 SCR 750; Vandana Sharma v. Rakesh Kumar Sharma (2008) 1l SCC 768; Anju Ohri v. Varin@;' Ohri (2007) 15 SCC 556; Premlata Singh v. Rita Singh (2005) 12 SCC 277; Gana Saraswathi v. H. Raghu Prasad (2000) 10 SCC 277; Modi Entertainment Network and anr. v. W.S. G Cricket Pte. Ltd. (2003) 4 sec 341 : [2003] 1 SCR 480; Spiliada Maritime Corpn. v. Cansu/ex Ltd. (1986) 3 All ER 843; Kusum Ingots & Alloys Ltd. v. Union of India and anr. (2004) 6 SCC 254 : (2004] 1 Suppl. SCR 841; State of Maharashtra etc. v. Dr. Praful B. Desai etc.

(2003) 4 SCC 601 : (2003] 3 SCR 244; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu fodav and anr. (2005) 3 SCC 284; Budhadev Karmaskar (./)

v. State of West Bengal (2011) 10 SCC 283 : [2011 J 10 SCR 577; Malthesh Gudda Pooja 1: S1,11e <?f Karna/aka and ors. (2011) 15 sec 330 : 120111 11 SCR 870 - referred to.

Case Law Reference

(2006) 9 sec 197 referred to Para 7 c2000) 9 sec 255 referred to Para 7

(2000) 9 sec 355 referred to Parn 7

(2000) 9 sec 441 referred to Para 7 (2000)10 sec 350 referred to Para 7 c2002) 10 sec 480 referred to Para 7

(2004) 13 sec 436 referred to

(2004) 13 sec 462 referred to

(2008) 14 SCR 750 referred to

(2008) 11 sec 768 referred to

(2007) is sec 556 referred to

(2005) 12 sec 211 referred to c2000) 10 sec 211 refened to

(2003) 1 SCR 480 referred to

(1986) 3 All ER 843 referred to [2004] 1 Suppl. SCR 841 referred to

(2003) 3 SCR 244 referred to

(2005) 3 sec 284 referred to

[2017] 5. S.C.R.

Para 7 Para 7 Para 7 Para7 Para7 Para8 Para8 Para 13 Para 13 Para 14 Para 14 Para 14.

(2011) 10 SCR 577 referred to Para 14

[2011) 11 SCR 870 referred to Para 14

CIVIL ORIGINAL JURISDICTION: Transfer Petition (Civil) No. 1912 of2014.

Under Section 25 of the Civil Procedure Code, 1908.

C. A. Sundaram, Sr. Adv. (A. C), Ms. Vanita Mehta, Ms. Rohini Musa, Zafar, Guayat, Ms. Apoorva Tripathi, Abhishek Gupta, Ms.

E Akansha Kaul, Advs. for the Petitioner. '

Nitin Gaur, Ranjit Kumar Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by

ADARSH KUMAR GOEL, J. I. This transfer petition has been F filed for transfer of Case No.l 79A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled "Harish Nagam vs. Krishna Veni Nagam" pending on the file ofll Presiding Judge, Family Court, Jabalpur, Madhya

Pradesh to the Family Court Hyderabad, Andhra Pradesh.

2. Case of the petitioner-wife is that she was married to the respondent-husband in the year 2008 at Kukatpally, Hyderabad. She G was blessed with a girl child in 2009. While living in her in-law's house at Jabalpur, she was ill-treated. She was subjected to mental and physical torture. She suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of H conjugal rights which was later on got dismissed as withdrawn. Thereafter,

KRISHNA VENI NAGAM v. HARISH NAGAM

[ADARSH KUMAR GOEL, J.]

a divorce petition has been filed at Jabalpur while the petitioner has filed A a domestic violence case at Hyderabad. Since the petitioner-wife, along with her minor daughter, is living with her parents, she cannot undertake

long journey and contest the proceedings at Jabalpur by neglecting her minor child. She also apprehends threat to her security in attending proceedings at Jabalpur. 8

4. On 7•h January, 2015, notice was issued and stay of proceedings was granted. The matter has been pending in this Court for more than two years.

5. On 9th January, 2017 when the matter came-up for hearing, the following order was passed: c "This petition ts filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The D marriage took place at Hyderabad. The petitioner has to look after her minor daughter who is living with her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the . time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitione; or in certain situations (as stipulated in clause iv) where the petitioner resides.

This Court is flooded with petitions of this nature and having regard to th.e convenience of the wife transfer is normally allowed. However, in the process tire litigants have to travel to this Court and spend.on litigation. Question is whether this can be avoided? ·

We are of the view that if orders are to be passed in every G individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed.

In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to H

the effect tllat in case wltere ltusband files matrinunial proceedings at place wllere wife does not reside, tlte court concerned should entertain such petition only on tlle condition tltat tile husband makes appropriate deposit to bear tlle expenses of tlle wife as may be determined by tlte Court. Tiie Court may also ]lass orders from time to time for f11rtller deposit to ensure tllat tlle wife is not handicapped to defend tlle proceedings. In otller cases, tlle ll11sband may take proceedings before tlle Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any otlter option to remedy the situation can also be considered.

However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court.

List the matter on 31st January, 2017.

D We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A set of papers may be furnished to the amicus. "

(Emphasis added)

6. Thus, the question is whether an order can be passed so as to provide a better alternative to each individual being required to move this Court.

7. We have already noted that large number of transfer petitions of the present nature are being filed in this Court and are being mechanically allowed. Similar observation was made by this Court more than I 0 years ago in Anindita Das v. Srijit Das1 " ••• On an average at least 10 to 15 transfer petitions are on board of each court on each admission day." It has also been observed in a number of cases that in absence of any male member being available to accompany the wife who is party to matrimonial proceedings to a different place, it may render it "expedient for ends of justice" to transfer proceedingsc.

1 (2006) 9 sec t97

2 Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC255; Lalita A. Ranga v. Ajay Champalal Ranga (2000) 9 SCC 355; Decpa v, Anil Panicker (2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000) I 0 SCC 350; Leena Mukherjee v. Rabi Shankar Mukherjee (2002) l 0 SCC 480; Neel am Bhatia v. Satbir Singh Bhatia (2004) 13 SCC 436; Soma Choudhury v. Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej

Pal (2007) 15 SCC 597; Vandana Sharma v. Rakesh Kumar Sharma (2008) 11 SCC 768; and An ju Ohri v. Varinder Ohri (2007) 15 SCC 556.

[ADARSH KUMAR GOEL, J.] 519

8. Of course in some cases, it was observed that instead of A proceedings being transferred, the husband should pay travel, lodging and boarding expenses of the wife and/or person accompanying for each hearing3• This trend has also been followed in other matrimonial disputes, including guardianship dispute, etc.4

9. Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being almost mechanically allowing is that they are not denied justice on account of their inability to participate in proceedings instituted at a different place on account of difficulty either on account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing equal access to justices, power of the State to make special provisions for women and children6 and duty to uphold the dignity ofwomen7• Various steps have been taken in this direction8•

10. As noted in the Order dated 9'h January, 2017 quoted above, Section 19 of the.Act permits proceedings to be filed not only at a place where the wife resides but also at place where marriage is solemnized or the place where the parties last resided together. It is mostly in the

' Premlata Singh v. Rita Singh (2005) 12 SCC 277 4 Gana Saraswathi v. H. Raghu Prasad (2000) 10 sec 277 'Article 39A of the Constitution of India, 1950. 6 Article 15(3) of the Constitution of India, 1950. 7 Article 51-A(e) of the Constitution of India, 1950. •. In Articles 243-D and 243-T of the Constitution, provision has been made for reservation for women in Panchayats and Municipalities by 73"' and 74'" Amendments.

Need for affirmative action consistent with the Article 15(3) of the Constitution has led to several measures being adopted by the legislature, executive as well as the judiciary to advance gender justice. The Convention on the Elimination of All Forms of Discrimination against Women (CED AW) underlines the awareness ofthe international commitments on the subject which has inspired several judgments of this Cou1t [Vishaka

v. State-0fRajasthan (1997) 6 SCC 241; Arun Kumar Agrawal v. National Insurance Co. Ltd. (2010) 9 SCC 218; Charu Khurana v. Union of India (2015)1 SCC 192; Prakash v. Phulavati (2016)2 SCC 36; Danial Latifi v. Union oflndia (200 I )7 SCC 740; Voluntary Health Assn. of Punjab v. Union oflndia (2013) 4 SCC l and; Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa ( 1987) 2 SCC 469. It was observed in

Volu11tary Health Ass11. as under:

"20. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilised. In the first part of the last century Swami Vivekanand had said:

'Just as a bird could not fly with one wing 011/y, a nation would not march forward if the women are left behind."'

said situations that the wife has hardship in contesting proceedings. At the same time, under the law the husband is legally entitled to file proceedings at such places. Territorial jurisdiction of court is statutorily laid down in C.P.C. or other concerned statutes.

11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel as amicus curiae. Learned amicus has suggested that Section .19 of the Act should be interpreted to mean that the jurisdiction at the place other than where wife resides being available only at the option of. the wife or that such jurisdiction will be available in exceptional cases where the wife is employed and the husband is unemployed or where the husband suffers from physical or other handicap or is looking after the minor child. Even though we are unable to give such interpretation in the face of plain language of statute to the contrary and it is for the legislature to make such suitable amendment as may be considered necessary, we are certainly incfined to issue directions in the interest of justice consistent with the statute.

12. Mr. Nadkami, learned Addi. Solicitor General has suggested that it will be appropriate to give some directions to meet the situation.

He submitted that paramount consideration in dealing with the issue ought to be the interest" of justice and not mere convenience of the parties.

Thus, where husband files a petition at a place away from the residence of the wife, the husband can be required to bear travel and incidental expenses of the wife, if it is so considered appropriate in the interest of justice. At the same time, ifthe husband has genuine difficulty in making the deposit, proceedings can be conducted by video conferencing. At least one court room in every district court ought to be equipped with the video conferencing facility. The interest of the minor child has also to be kept in mind along with the interest of the senior citizens whose interest may be affected by one of the parties being required to undertake trips to distant places to face the proceedings. Protracted litigation ought to be avoided by better management and coordination so that number of adjournments can be reduced.

13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice.

Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient

[ADARSH KUMAR GOEL, J.] 521

for the interest of all the parties at the ends of justice. In Modi A Entertainment Network and anr. v. W.S.G Cricket Pte. Ltd.9 this Court observed:

"19. In Spiliada Maritime 10case the House of Lords laid down the following principle:

"The fundamental principle applicable to both the . stay of English proceedings on the ground that some . other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in. which the case could be tried more suitably for the interest of all the parties and for the ends of justice. "

The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried. "

Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plpintiff is the dominus /itis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed//.

• t2003)4 sec 341

10 Spiliada Maritime Corpn. V. Cansulex Ltd. ( 1986)3 All ER 843

II Kusum Ingots & Alloys Ltd. v. Union of India and anr. (2004) 6 sec 254 para 30

14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the pai1ies have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court's jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing12•

15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/information officer in every district cq_urt may be accessible on a notified telephone during notified hours as

12 State of Maharashtra etc. v. Dr. Praful R Desai etc. (2003) 4 SCC 60 I; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and anr. (2005) 3 SCC 284; Budhadev Karmaskar (4) v. State of West Bengal (2011) 10 SCC 283; Malthesh Gudda Pooja v.

State of Karnataka and ors. (2011) 15 SCC 330

KRISHNA VENI NAGAM v. HARISH NAGAM

[ADARSH KUMAR GOEL, J.]

per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.

17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.

18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order

incorporating such safeguards may be sent along with the summons.

The safeguards can be:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of

Order XXV CPC.

iv) E-mail address/phone number, ifany, at which litigant from oµt

station may communicate.

19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9'h January, 2017. H9wever, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No. I 79A/2013 under Section 13 of the Act titled ''Harish Nagam vs. Krishna Veni Nagam" pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video

A conferencing. Records shall be sent by court where proceedings are pending to the transferee court forthwith.

20. Te Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action.

21. We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram N .S. Nadkarni, learned Additional Solicitor General and Mr. C.A. Sundaram, learned Senior Advocate.

22. The transfer petition is disposed of accordingly.

Ankit Gyan Petition disposed of.