How Sympathetic view of Courts towards Wife in Divorce Transfer Petitions can lead to Injustice

  •   Thu, Sep 16 2021
  •   By Adv Juhi Damodar

September 16, 2021

Woman empowerment brought in special provisions ensuring protection to women but it is being misused. There's a new trend where girls befriend guys to marry after assessing his social & financial status and if he isn't catering to her greed, she simply walks out by putting false accusations on him and his family, causing them to get summoned to police stations and courts .The rise of such false allegations and harassment on men even leading to suicide is alarming.

When a man trapped in such marriage seeks divorce, the wife may apply delaying tactics to coerce him to shell out huge sums. Law is now used as playground for extortion and many cases are following the same pattern. Tactics like taking advantage of the pandemic, applying for transfer petition etc to harass the husband and delay divorce proceedings is on the rise. As per procedures of the Supreme Court Rules 2013, the transfer petition on first hearing date is posted before Court for preliminary hearing and orders as to issue of Notice. If court is not convinced that prima facie a case of transfer is made out then it can dismiss it, otherwise, Notice is issued to Respondent to show cause why the petition should not be transferred. In the entire process, in best scenario, it normally takes upto three months in adjudication of transfer petitions.

Transfer Petition is filed by the party who intends to get the case transferred from one court to another court as specified. Then court decides whether or not the case is transferable based on relevant grounds. Divorce transfer petition are filed in Supreme Court and its civil transfer jurisdiction is invoked usually at the instance of the wife because the husband filed the petition in place of matrimonial residence but wife is residing in some other State.

Under Section 25 of the Code of Civil Procedure, the Supreme Court has power to transfer any Case, appeal or other proceedings. This power may be exercised by Supreme Court if it is satisfied that an order under this Section is expedient for the ends of justice. As a rule, the Supreme Court does not allow Transfer Petition without issuing Notice to the Respondent/ the person who instituted the case at original local level. However, post Notice if Respondent does not appear then an Ex-parte order of transferring the case may be passed (Gyanmati Yadav v. Ram Sagar Yadav, (2013) 14 SCC 621).

The court invariably takes a sympathetic view towards the wife’s plea for transfer, but this is not always the case and the trend is increasingly changing as educated women have misused laws to suit them and harass men. These days Supreme Court is not lenient in allowing transfer petition in favor of wife and is mostly dismissing them which is very encouraging and there are judgments passed by Supreme Court in this regard.

In Kalpana Devi Prakash Thakur v. Dr. Devi Prakash Thakur (1996) 11 SCC 96, court dismissed the wife’s plea for transfer taking into account that: (1) the husband was medical practitioner and his absence from Mumbai would cause inconvenience to his patients; (2) his old and ailing mother living with him needed regular medical check-ups and constant care; (3) the witnesses were principally from Mumbai; (4) the wife had relatives in Mumbai with whom she could stay whenever she went there for the case; (5) the husband was ready to bear the expenses of travel and also travelling expenses of the escort (6) Palanpur was well connected to Mumbai by train.

In Krishna Veni Nagam vs Harish Nigam (2017) 4 SCC 150, the Supreme court stated 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. The Court also stated that it orders incorporating safeguards which 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.The aforementioned guidelines were issued to all High courts to make arrangements for video conferencing instead of transferring petitions, therefore dismissing all the transfer petitions filed in the Honourable Supreme Court.

In certain cases, Courts have chosen a middle path to transfer. Even settlement of cases during pendency of the transfer petition is encouraged and instead of relegating the parties to the trial court when both the parties are willing, the Court may permit to file for divorce petition by mutual consent itself. It is precisely in such situations that the power of the Court under Article 142 of the Constitution can come to the aid of parties, because “complete justice” is then done.

Courts are already sitting on a ticking pendency bomb and citizens are losing sanity and faith in judiciary. Experience has demonstrated that outside of the Supreme Court and certain High Courts, other courts are not capable of hearing large numbers of cases virtually. The spirit behind orders of Supreme Court must be gender neutral while granting justice on basis of genuine facts. If it’s found that power of Supreme Court is invoked to harass then it is to be penalised and divorce be granted. In an age where marriage and divorces are happening at the speed of light, it is prudent to dismiss off any impediments that thwart the Courts from rendering justice in a gender neutral way.

 
By Adv Juhi Damodar
Juhi Damodar is an advocate at the High Court of Maharashtra and Goa.
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Comment on this article

  • Justice to women, Udupi

    Tue, Sep 21 2021

    What about men who go behind wealthy well to do girls and exploit them after marriage? The wife will have to take care of the husband's needs and also the in-laws needs. The whole family starts harassing the wife, because she is doing well and is expected to take care of the husband. There are many men who target professionally well qualified women and live on their income after marriage.

  • mohan prabhu, mangalore/canada

    Mon, Sep 20 2021

    Playboys with lots of money are the ones who are sought after by these highty-flighty girls who want to squeeze them. Playboys are often naive, unaware they are being seduced and this may especially be true of older men who are nabe to resist the charms. They bring upon themselves this situation; like Samson they fall for these Delilahs. The hefty "pay-backs" are, no doubt, shared by the lawyers who they employ to "negotiate".95096

  • Mangalurian, Mangaluru

    Fri, Sep 17 2021

    A very good and timely article. Thank you. The Indian law is very biased towards women. My recommendation to the men not married yet: please wait until your girlfriend turns 40, and then get married. Otherwise, regrets will be many. As expected, the society, police, media, lawyers - all love to help a woman, merely on the basis of her published story. If the man goes to the courts as a last resort, well, there is no much hope there either!

  • John, Mangalore

    Thu, Sep 16 2021

    Does God rebuke that? Marriage between a man and a woman in any religion is an eternal covenant and third person is God. That's why God's representive present to solemnize marriages. Most often pairs will be just opposite, one is strong in one area, other is weak and vice versa in different areas. This looks like for God to test how lovingly or cordially one lives with their spouse ....... Also Bible says in Malachi 2:16 “For I hate divorce,” says the LORD, the God of Israel. “He who divorces his wife covers his garment with violence,” says the LORD of Hosts. So guard yourselves in your spirit and do not break faith. Except on the following ground ......... And in Matthew 5:31-32 Jesus says, “It was also said, ‘Whoever divorces his wife, let him give her a certificate of divorce.’ But I say to you that everyone who divorces his wife, except on the ground of sexual immorality, makes her commit adultery, and whoever marries a divorced woman commits adultery.

  • Jossey Saldanha, Thane

    Thu, Sep 16 2021

    I will appreciate a Sympathetic view of Courts to women who get Abandoned without Divorce ...

  • M.MANGALORE, Mangalore

    Thu, Sep 16 2021

    Very nice article thank you There is lots of case married men not fulfilled wife expectation after marriage wife are desperate their life. Specially who is love with money not family life, they without thinking and without attending counseling directly file the false case and they know they can do what ever they want. Personally i realized all this things and i am wondering no one can solve this problem even counseling .


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Title: How Sympathetic view of Courts towards Wife in Divorce Transfer Petitions can lead to Injustice



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