PETITIONER: ANITA LAXMI NARAYAN SINGH Vs. RESPONDENT: LAXMI NARAIN SINGH DATE OF JUDGMENT24/03/1992 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) VENKATACHALLIAH, M.N. (J) JEEVAN REDDY, B.P. (J) CITATION: 1992 AIR 1148 1992 SCR (2) 316 1992 SCC (2) 562 JT 1992 (2) 349 1992 SCALE (1)722 ACT: Hindu Marriage Act, 1955 : Section 13-Divorce-Petition by husband at Bombay-Wife required to travel a long distance to defend proceedings- Transfer petition by wife-Supreme Court directing sufficient expenses for wife's stay and travel expenses-Grant of meagre amount of wife by Family Court-Consequent inability of wife to attend proceedings-Ex-parte divorce decree in favour of husband-Held grant of meagre amount of wife resulted in denial of justice-Ex-parte decree of divorce set aside. HEADNOTE: The respondent was married to appellant at Ghaziabad. He filed a Divorce Petition at Bombay and the appellant-wife filed applications for maintenance and expenses of the divorce proceedings. Subsequently she filed a Transfer petition in this Court for transferring the case from Bombay to Ghaziabad which was disposed by this Court directing that (i) the respondent-husband would pay Rs.2500 for wife's next visit to Bombay; and (ii) the Family Court would insist on the husband depositing the to and fro fare for the wife and her companion and also an amount sufficient for their stay in Bombay on each visit. The Family Court dismissed the wife's application for interim maintenance and expenses of proceedings on the ground that she was gainfully employed but awarded Rs. 700 as expenses and further directed that she will be paid an additional amount of Rs. 150 per day in case of her stay for more than one day at Bombay. Against this order the appellant filed a Special Leave petition in this Court. Since she was held up for attending to her petition in this Court the Family Court granted an ex-parte decree of divorce to the husband. She filed a petition in this Court as she could not attend the Court on account of her inability to meet the expenses for travel and residence in Bombay. Allowing the appeal, this Court, 317 HELD : 1. While disposing the appellant's Transfer Petition this Court had clearly directed that the Family Court will insist on the husband not only depositing the to and fro travel expenses for the wife and her companion but also an amount sufficient for their stay in Bombay on each visit. But the Family Court has been far from just to the wife who was required to travel a long distance to defend herself. Nothing has been allowed by way of transport charges and lodging and boarding charges even if she has not to stay for an additional day in Bombay. [320 D-F] 2. The interim order passed by the Family Court is for reasons best known to it, highly biased. This is more so because this Court's order granting expenses to visit Bombay provided sufficient guideline for determining the quantum of expenses to be awarded. Besides the Family Court has not awarded any amount to meet the cost of the proceedings on the specious plea that the appellant is gainfully employed. To say the least the order is far from satisfactory and has resulted in gross denial of justice. The impugned order is accordingly set aside. [321 A-C] 3. As the interim order made it impossible for the wife to contest the divorce petition in the Family Court and facilitated an ex-parte divorce decree in favour of the husband, in the extraordinary and peculiar circumstances of this case, the ex-parte divorce decree is set aside. [321 C- D] 4. Interest of justice requires transfer of the proceedings from the Family Court, Bombay to the District Court, Ghaziabad. The restored divorce proceedings will stand transferred from Family Court Bombay to the District Court, Ghaziabad. [321 E-F] JUDGMENT:
ORIGINAL JURISDICTION : Interlocutory Application No. 4
of 1991 in Transfer Petition (Civil) No. 521 of 1990.
(Petition under Section 25 C.P.C.)
WITH
C.A. No. 1119 of 1992
WITH
C.A. No. 1118 of 1992
318
Mrs. Sureshtha Bagga for the Appellant.
Vimal Dave for the Respondent.
The Judgment of the Court was delivered by
AHMADI, J. Delay condoned. Special leave granted in
both matters. The facts leading to these cases, briefly
stated, are that the appellant Anita married respondent
Laxmi Narain on November 1, 1987 at Ghaziabad according to
Hindu rites. It is the appellant’s case that on the very
next day at the Bidai ceremony the relatives of her husband
raised a dispute regarding inadequacy of dowry amount.
However, that dispute was settled for the time being by
respected persons but Anita was not happy at her husband’s
home on account of ill-treatment meted out to her by the
respondent. Ultimately on March 11, 1988 she left for her
father’s house in Ghaziabad and since then she has been
living there.
The respondent sent a notice through his Advocate dated
November 16, 1988 and followed it up by filing a Divorce
Petition under Section 13 of the Hindu Marriage Act in the
City Civil Court at Bombay. On the appellant being served
with the notice of the divorce petition she went to Bombay
and entered an appearance and also filed an application for
maintenance pendente lite. Even thereafter she attended
court on several adjournments but there was no progress in
the matter. On October 3, 1989 the proceedings were
transferred to the Family Court at Bandra, Bombay, and the
appellant was informed about the same. The appellant filed
a complaint under Section 498A, IPC against the respondent
at Ghaziabad on December 13, 1989. The appellant paid
several visits to Bombay to attend the divorce proceedings
in the Family Court but the matter was only adjourned from
time to time. An effort was made by the Marriage Counsellor
of the Family Court to bring about a settlement on May 22,
1990 but in vain. Tired of making long trips from Ghaziabad
to Bombay the appellant preferred a Transfer Petition in
this Court for transferring the case from Bombay to
Ghaziabad wherein notice was issued and the respondent filed
his counter. The Transfer Petition was ultimately disposed
of by this Court’s order dates January 14, 1991 to the
following effect :
“Since the matter is pending in the Family Court
in which the petitioner herself has also filed an
application bearing No. 4091/89, We think it would
be advisable to allow the Family
319
Court to dispose of the matter expeditiously. The
ends of justice would suffice if we direct that on
each occasion the petitionerwife is required to
attend the Family Court, the Family Court will
first insist on the husband depositing the to and
fro fare for the petitioner and a companion and
also an amount sufficient for their stay in Bombay
on each visit. For the next visit to Bombay we
direct the husband to deposit a sum of Rs. 2500 in
the Family Court under notice to the petitioner.
We also hope that the Family Court will appreciate
the difficulty of the petitioner-wife and try to
dispose of the matter and vacate the stay but with
liberty to the petitioner-wife to move this Court
in case of difficulty.”
It was only after this order was passed that the
respondent filed his reply to the appellant’s application
for grant of interim maintenance and cost of proceedings.
As her first application was not taken up for hearing she
filed another application for payment of expenses, etc. The
Family Court dismissed her application for interim
maintenance and expenses of proceedings on the ground that
she was gainfully employed. The only amount allowed by the
Family Court was Rs. 700 towards second class sleeper
Railway fare for herself and her companion. The Family
Court also observed that if she and her companion are
required to stay in Bombay the respondent will pay Rs. 150
for additional days. After this order dated April 20, 1991
the appellant was directed to file her statement by May 20,
1991.
Feeling aggrieved by this order the appellant
approached this Court seeking special leave to appeal
against the said order. She also filed I.A. No. 4 of 1991
in Transfer Petition No. 521/90 in view of the liberty
reserved unto her by this Court’s order dated January 14,
1991. In the meantime the divorce proceedings were listed
before the Family Court on September 23, 1991 and as the
appellant was held up for attending to her special leave
petition against the interim order she sought an adjournment
by a letter sent through courier service on September 21,
1991. However that being a holiday the Family Court did not
hold its sitting but took up the matter on the next day.
Since the letter written by the appellant had reached the
Family Court, the Family Court adjourned the matter to
October 7, 1991 with a direction to obtain a stay from the
Supreme Court or else the matter
320
would proceed. Intimation about the said order was sent to
the appellant at her old address even though her new address
was communicated to the Family Court earlier. The
proceedings were adjourned from October 7, 1991 to October
11, 1991 and thereafter to October 19, 1991 without
intimation to the appellant. The evidence was recorded on
October 19, 1991 and the judgment was pronounced on October
21, 1991 allowing the divorce petition and granting a decree
for divorce expert. The appellant has preferred a special
leave petition against the said order granting divorce on
the plea that she had been condemned unheard by the Family
Court as she could not attend the court on account of her
inability to meet the expenses for travel and residence in
Bombay. These are the circumstances in which the aforesaid
proceedings have arisen before this Court.
From the facts set out above it is evident that this
court did not order transfer of the case because it felt
that the Family Court, Bombay, which was seized of the
matter would be able to resolve the controversy at an early
date. This Court had clearly directed that the Family Court
will insist on the husband not only depositing the to and
from travel expenses for the wife and her companion but also
an amount sufficient for their stay in Bombay on each visit.
Even according to the Family Court the second class fare
from Bombay Central to Delhi by mail train and from Delhi to
Ghaziabad comes to Rs. 326 + Rs. 12 i.e. Rs. 338 for two
persons. The Family Court, therefore, awarded Rs. 700 by
way of expenses and added that she will be paid an
additional amount of Rs. 150 per day if she has to stay for
more than one day. To say the least, the Family Court has
been far from just to the wife who was required to travel a
long distance from Ghaziabad to Bombay Central to defend
herself. Nothing has been allowed by way of transport
charges and lodging and boarding charges even if she has not
to stay for an additional day in Bombay. Where does the
Family Court expect her to put up in Bombay after a 24 hour
journey ? If the case is adjourned it seems the Family
Court expects her to leave on the same day post-haste for
Delhi. Even on reaching Bombay after a tiring journey of 24
hours she is not provided any expense by way of hotel
charges, lodge and board, for the day. Does the Family
Court expect her to rush to Court from the station and rush
back to station from the Court on the proceedings being
adjourned for the day? Even the meagre payment of Rs. 150
is made available to her if she has to stay in Bombay for an
additional day. The Family Court, with respect, also did
not realise that it would be impossible to find a modest
living place for two for Rs. 150 per day in a
321
costly city like Bombay, leave aside the expense for meals,
etc. It seems to us that the interim order passed by the
Family Court is, for reasons best known to it, highly
biased. This is more so because it had before it this
Court’s order granting Rs. 2500 by way of expenses to visit
Bombay which provided sufficient guideline for determining
the quantum of expenses to be awarded. Besides, the Family
Court has not awarded any amount to meet the cost of the
proceedings on the specious plea that she is gainfully
employed. To say the least the order is far from
satisfactory and has resulted in gross denial of justice.
The order made it impossible for the wife to meet the
expenses of frequent visits to Bombay and facilitated an ex-
parte divorce decree in favour of the husband.
In the result we allow the appeal and set aside the
impugned order dated 20th April, 1991 passed in M.J.
Petition No. 146 of 1989. As the said order of 20th April,
1991 made it impossible for the wife to contest the divorce
petition in the Family Court and facilitated an ex-parte
divorce decree in favour of the husband, in the
extraordinary and peculiar circumstances of this case, we
allow the appeal and set aside the ex-parte divorce decree.
Having regard to the fact that the husband is a high
ranking railway officer who would be entitled to travel
facilities, we think in the backdrop of events that have
taken place, it would be expedient in the interest of
justice of transfer the proceedings from the Family Court,
Bombay, to the District Court, Ghaziabad, for disposal in
accordance with law, The restored divorce proceedings will
stand transferred to the District Court, Ghaziabad. The
Family Court, Bombay will forthwith transmit the record and
proceedings, inclusive of pending interim applications
including the one in which the impugned order of 20th April,
1991 came to be passed, to the District Court, Ghaziabad,
for disposal in accordance with law. The respondent-husband
will pay the cost of the present three proceedings which we
quantify at Rs. 5,000 (Rupees five thousand only).
T.N.A. Appeal allowed.
322