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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION   (CIVIL) NO. 1912 OF 2014

KRISHNA VENI NAGAM  …PETITIONER

VERSUS

HARISH NAGAM                     ...RESPONDENT

J U D G M E N T

ADARSH KUMAR GOEL, J

1. This  transfer  petition  has  been  filed  for  transfer  of  Case

No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled

“Harish Nagam  vs.  Krishna Veni Nagam” pending on the file of II

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

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

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conjugal  rights  which  was  later  on  got  dismissed  as  withdrawn.

Thereafter,  a  divorce  petition  has  been  filed  at  Jabalpur  while  the

petitioner has filed 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.   

4. On 7th 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:  

“This petition is 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 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 petitioner  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 the convenience of the wife transfer is normally allowed. However, in the process the litigants

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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 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 the effect that in case where husband files matrimonial proceedings at place where wife does not  reside,  the  court  concerned  should  entertain  such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other  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.  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 10 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 1 (2006)9 SCC 197

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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 proceedings2.  

8. Of  course  in  some  cases,  it  was  observed  that  instead  of

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

justice5, power of the State to make special provisions for women and

children6 and duty to uphold the dignity of women7.  Various steps

2 Mona Aresh Goel  v.  Aresh Satya Goel (2000) 9 SCC255; Lalita A. Ranga  v.  Ajay Champalal 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; Neelam 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 Anju Ohri  v.  Varinder Ohri (2007) 15 SCC 556. 3  Premlata Singh  v.  Rita Singh (2005) 12 SCC 277 4   Gana Saraswathi  v.  H. Raghu Prasad  (2000)10 SCC 277 5  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.

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have been taken in this direction8.  

10. As noted in the  Order  dated 9th 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 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

8 .  In Articles 243-D and 243-T of the Constitution, provision has been made for reservation for women in Panchayats and Municipalities by 73rd and 74th 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  (CEDAW) underlines the awareness of the international commitments on the subject which has inspired several judgments of this Court [Vishaka  v.  State of Rajasthan (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 of India (2001) 7 SCC 740; Voluntary Health Assn. of Punjab  v.  Union of India (2013) 4 SCC 1 and; Mackinnon  Mackenzie & Co. Ltd.  v.  Audrey D’Costa (1987) 2 SCC 469. It was observed in Voluntary Health Assn.  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 only, a nation would not march forward if the women are left behind.’”

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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 inclined to issue directions

in the interest of justice consistent with the statute.   

12. Mr. Nadkarni, learned Addl. 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,  if  the  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

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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 for the interest of all the parties at the ends of justice.  In

Modi 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

9 (2003)4 SCC 341 10 Spiliada Maritime Corpn.  V.  Cansulex Ltd.  (1986)3 All ER 843

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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 plaintiff is the  dominus litis

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 availed11.

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

parties have equal difficulty and there is no place which is convenient

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

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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.

12 State of Maharashtra  etc. v.  Dr. Praful B. Desai etc. (2003) 4  SCC 601; 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

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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  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.  

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

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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, if any, at which litigant from out 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  9th January,  2017.   However,  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.179A/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

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transferee court to conduct the proceedings or record evidence of the

witnesses  who  are  unable  to  appear  in  court  by  way  of  video

conferencing.  Records shall be sent by court where proceedings are

pending to the transferee court forthwith.  

20. The  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.

21. The transfer petition is disposed of accordingly.    

      …………..…………………………….J.     [ADARSH KUMAR GOEL]

.….……………………..……………..J.             [UDAY UMESH LALIT]

NEW DELHI; MARCH 9, 2017.