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Published : October 15, 2017 | Author : nitish788
Category : Miscellaneous | Total Views : 155 | Unrated

  
nitish788
Advocate Nitish Banka, advocate supreme Court of India. nitish@lexspeak.in
 

No video conferencing in transfer petition

For some days Hon’ble Supreme court was not lenient in allowing transfer petition in supreme court in favor of wife and is mostly dismissing these kind of petitions and citing Krishna Veni Nagam vs Harish Nigam
In the aforesaid judgement the supreme court relying on Para-17 and 18 as mentioned below.

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, if any, at which litigant from out station may communicate.
Therefore the aforementioned guidelines were issued to all the High courts to make arrangements for video conferencing instead of transferring the petition, therefore dismissing all the transfer petition filed in the Hon’ble Supreme Court.

For husband the judgement of  Krishna Veni Nagam vs Harish Nigam is a valid defense for husbands  for defending transfer petition supreme court.

However this Judgement was referred to higher bench which has now overruled the judgement ofKrishna Veni Nagam vs Harish Nigam

In Santhani Vs. Vijaya venketesh the supreme court
The majority judgment by CJI Dipak Misra and Justice Khanwilkar held the following:
On video conferencing the court held
When most of the time, a case is filed for transfer relating to matrimonial disputes governed by the 1984 Act, the statutory right of a woman cannot be nullified by taking route to technological advancement and destroying her right under a law, more so, when it relates to family matters. In our considered opinion, dignity of women is sustained and put on a higher pedestal if her choice is respected. That will be in consonance with Article 15(3) of the Constitution.”

(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both the parties file their respective consent memorandum for hearing of the case through videoconferencing before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts and circumstances of the case that videoconferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent.

There can be other grounds for husband as well like-:
a. Manipulation of court records.
b. Attack on husband by wife or relatives.
c. Petition filed to harass husband
d. Petition filed without jurisdiction by reading petition only.

 

By Adv. Nitish Banka

Advocate Supreme court

nitish@lexspeak.in




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