Dua’s & Dua’s, Best Divorce Lawyer in Ashok Vihar, provides expert legal guidance for a wide range of family law matters. Our compassionate approach aims to expedite resolutions while safeguarding your interests. Specializing in Divorce, Domestic Violence, and Child Custody cases since 2004, Rajal Rai Dua, our esteemed founder, brings deep expertise to every case. Our proactive strategies ensure amicable settlements through mediation and conciliation. With proficiency in Adoption, Alimony, Marriage, Succession, and more, trust our diligent team to navigate complex family law intricacies with care and diligence across Delhi.
Under the Hindu Marriage Act of 1955, contested divorce can be sought based on specific grounds outlined in Section 13:
Additional grounds available to only wives seeking contested divorce include:
These grounds provide a legal framework for divorce proceedings under the Hindu Marriage Act, delineating circumstances justifying the dissolution of marriage.
A Transfer Petition is a legal remedy used to relocate a case pending before one court to another court, typically within a different state, within India. Endowed with the authority to ensure complete justice, the Supreme Court of India exercises jurisdiction over such transfers. This jurisdiction is derived from various legal sources including the Constitution of India, Supreme Court Rules, Code of Civil Procedure, and Code of Criminal Procedure. Depending on the nature of the case—civil or criminal—the petition is filed under the relevant statute. In civil matrimonial disputes, Section 25 of the Code of Civil Procedure is invoked, while in criminal matrimonial disputes, the Court utilizes its powers under Section 406 of the Code of Criminal Procedure. These provisions empower the Supreme Court to transfer suits, appeals, complaints, FIRs, or other proceedings from one state’s High Court or lower courts to a jurisdictionally appropriate court in another state.
The guiding principle underlying the transfer of matrimonial cases has been succinctly delineated by the Supreme Court in various landmark judgments. In Dr. Subramaniam Swamy v. Radhakrishna Hegde (1990) 1 SCC 4, the court emphasized that the paramount consideration for transferring a case under Section 25 of the Code of Civil Procedure is the imperative of justice. It was held that mere convenience of the parties, or any one of them, is insufficient grounds for transfer; rather, it must be demonstrated that conducting the trial in the chosen forum would result in a denial of justice. The court reiterated that if the interests of justice necessitate it, and transfer is indispensable, there should be no hesitation in effecting such transfer. The right of the dominus litis to select the forum and considerations of the plaintiff’s convenience must not overshadow the imperative of justice, which must prevail at all costs, even if it entails transferring the case from one court to another.
In a more recent case, Krishna Veni Nagam v. Harish Nagam, (2017) 4 SCC 150, the Supreme Court 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, where the defendants/respondents are located outside the court’s jurisdiction, the court where proceedings are initiated must assess whether incorporating safeguards is necessary to prevent a denial of justice when summoning the defendant/respondent. Orders including such safeguards (viz. VC Facilities, Legal Aid Services, Costs etc.) may be issued along with the summons.
These directives aim to ensure that litigants, especially those located outside the court’s jurisdiction, are not deprived of their right to justice due to logistical constraints or geographical barriers.
A subsequent ruling by a three-judge bench in the case of “Santhini Vs. Vijaya Venketesh Transfer Petition (Civil) No.1278/2016 with Transfer Petition (Civil) no.422/2017 dated 09.10.2017” has overturned the previous judgment of Krishna Veni Nagam Vs. Harish Nagam (supra). This earlier ruling had established the practice of referring parties involved in matrimonial disputes to participate via video conferencing when seeking transfer of the case. However, the recent decision, with a majority opinion from Chief Justice Dipak Mishra and Justice Khanwilkar (while Justice D.Y. Chandrachhud dissented), reinstates the previous practice, effectively reverting the situation to its pre-Krishna Veni Nagam Vs. Harish Nagam (Supra) state.
The Supreme Court frequently deals with transfer petitions in matrimonial cases, particularly when initiated by the wife. These petitions typically arise when the husband files for divorce or initiates legal proceedings related to marriage and divorce in the jurisdiction where he currently resides, often the place where the couple last lived together. In such scenarios, the wife, who may have returned to her parental home, seeks transfer on grounds such as financial constraints, childcare responsibilities, or safety concerns. While the court generally empathises with the wife’s request for transfer, it does not always grant it.
Settlement between the parties during the pendency of transfer petitions is commonly encouraged by the Supreme Court, provided both parties cooperate with the court’s efforts to facilitate resolution. However, such settlements are not mandated and depend on the willingness of the parties to engage constructively in the process.
In Vennangot Anuradha Samir vs. Vennangot Mohandas Samir presided over by Justice M.Y. Eqbal, the court considered a transfer petition in a matrimonial matter. The petitioner, a wife, sought transfer of a divorce suit filed by her husband in Bombay to the Family Court in Hyderabad. The couple had married in 2010 after a love affair that began in 2006, but marital discord arose in 2013, leading the petitioner to leave the matrimonial home. The husband subsequently filed for divorce on grounds of cruelty, and mediation efforts resulted in a settlement agreement wherein the husband agreed to pay the wife Rs. 12,50,000 as alimony. However, concerns were raised regarding the wife’s health, as she was diagnosed with breast cancer and urgently required funds for treatment. The court questioned whether the divorce settlement, reached under these circumstances, constituted valid consent, given the wife’s medical condition and financial vulnerability.
Citing relevant legal provisions, including Section 13-B of the Hindu Marriage Act, the court emphasized the necessity of free and mutual consent for divorce. It also considered principles of contract law, particularly the doctrine of undue influence and the pre-existing duty doctrine. The court concluded that the settlement agreement, whereby the husband promised to provide financial support for the wife’s treatment, did not constitute valid consideration for the divorce settlement, as it was a pre-existing duty of the husband to care for the wife’s health. Consequently, the court allowed the transfer petition, ordered immediate payment of Rs. 5,00,000 for the wife’s medical expenses, and directed further proceedings to take place in the Family Court at Hyderabad.
In the case of Delma Lubna Coelho v. Edmond Clint Fernandes, TP(C) No. 1475/2021, the Supreme Court deliberated on the petition filed by the wife seeking the transfer of a case initiated by the husband from Mangaluru, Karnataka to Mumbai, Maharashtra. The court ruled against the transfer, citing the petitioner’s status as a permanent resident of Canada who frequently travels abroad. Despite noting the prevalence of transfer petitions in matrimonial cases, particularly initiated by wives, and the court’s inclination towards leniency in such matters, the bench, consisting of Justice Rajesh Bindal and Justice Aravind Kumar, referenced the case of Anindita Das v. Srijit Das (2006) 9 SCC 197. They emphasized the need to assess each case individually, highlighting concerns that leniency may be misused, thus emphasizing the importance of evaluating transfer petitions on their own merits.
In the case of Anju v. Pramod Kumar, (2005) 11 SCC 186, two counter transfer petitions were filed, one by the wife and the other by the husband. The wife sought the transfer of the case initiated by the husband in Agra, U.P. to Nainital, Uttaranchal, while the husband requested the transfer of the case initiated by the wife in Nainital to Agra. Both parties expressed concerns about appearing in the other location. In light of this, the Court decided that it would be appropriate for the cases to be heard at a neutral location, namely Bareilly (U.P.).
In another case, Deepika v. Maruthi Kathare, (2005) 11 SCC 433, the wife filed a transfer petition before the Supreme Court seeking to transfer the divorce case filed by the husband in Chennai to Hubli, Karnataka. Although the husband did not oppose the petition, he requested the Court not to transfer the case to Hubli due to safety concerns, citing past incidents. The Court decided to transfer the case to a nearby district, Gadak, Karnataka, instead of Hubli, as requested by the wife, taking into account the husband’s safety concerns.
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Matrimonial cases, at times, can lead to serious legal implications, including incarceration. Advocate Rajal Rai Dua‘s legal team ensures that clients receive the best legal advice on divorce matters, offering guidance through the process to achieve a positive outcome and avoid adverse consequences. Advocate Rajal Rai Dua excels in cases related to child custody, alimony and maintenance, domestic violence leading to separation, anticipatory bail, 498 A Cr.P.C, etc. With the presence in family courts across Delhi, Advocate Rajal Rai Dua is a reliable choice for those seeking a hassle-free legal experience in divorce matters.
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