Supreme Court Transfer Petition

Court: Supreme Court of India

Case number: Transfer Petition (Civil) No. 1278 of 2016

Judges: Former CJI Mr. Deepak Misra, Justice Khanwilkar and Justice Dr DY Chandrachud

Issue involved: Over ruling of an order passed in Krishna Veni Nagam versus Harish Nagam 2017(2) R.C.R.(Civil) 358  where it was held that there is no need to transfer cases pertaining to matrimonial disputes if parties are located outside the jurisdiction of the Court and directed the parties to avail video conferencing facility instead.

Date of Decision: 09/10/2017

Brief Facts of the case

The petitioner has approached the Supreme Court seeking for transfer of HMA) No.580 of 2015 filed for dissolution of marriage of the respondent and petitioner and O.P. No.1282 of 2012 filed for custody of minor child, from the Court of Family Court, Alappuzha, Kerala to Family Court, Chennai, Tamil Nadu.

When the matter came up before the Court the advocate for respondent made a submission to consider the judgment in Krishna Veni Nagam versus Harish Nagam passed by a different bench Of Supreme Court comprised by Justice UU Lalit and Justice Adarsh Kumar Goel and requested the Court not to transfer the case and instead direct the parties to avail video conferencing facility as directed in the  above judgment.

In the historical backdrop

The Supreme Court speaking through Justice UU Lalit and Justice Adarsh Kumar Goel passed an order on 09/03/2017 wherein it permitted use of video conferencing in matrimonial cases if the parties are located outside the jurisdiction of the Court as an alternative of the lenient approach of allowing the transfer petitions.

This view was taken by the Court with the twin objectives of:-

1.  To prevent the backlog of transfer petitions before the Courts.
2. To balance the rights of both husband and wife. It is because a wife may find to contest a case from a particular place but at the same time it can become difficult for the husband to do the same.

However, this decision of a two judge bench was referred to a three judge bench of the Supreme Court who over ruled the earlier judgment by an order dated 09/10/2017.

Issue Involved

The main issue before the 3 judge bench were the following :-

1. Whether the judgment passed by the two judge bench in Krishna Veni Nagam versus Harish Nagam has been passed properly by keeping in mind all the relevant statutory  information or not ?
2. When video conferencing facility can be permitted by the Court in transfer petitions in matrimonial matters ?
3. Whether Court has issued any guidelines for dealing with petitions pertaining to matrimonial disputes ?

Observations of the Court        

Issue no. 1

1. While answering the first issue in negative, the Court relied on the Family Courts Act, 1984, the statement of objects and reasons in it, provisions of the Code of Civil Procedure, 1908 and the recommendations of the Law Commission in their 59^th report from 1974 and held that while passing the judgment the two judge bench has not considered that the procedure of videoconferencing which is to be adopted when one party gives consent is contrary to Section 11 of the 1984 Act. There is no provision that the matter can be dealt with by the Family Court Judge by taking recourse to videoconferencing.

Moreover it was held that  when 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.

The Court held that though the Family Courts and High Courts across India are relying on the above judgment rampantly but the legislative intent has not been properly brought out in the said judgment of the two judge bench of the Supreme Court and hence it can continue to operate and hence was over ruled.

Issue No. 2

While answering the second issue the Court held that no direction can be issued for video conferencing until and unless a joint application by each party filing his/her consent seeking hearing by videoconferencing is placed on record.

The application can only be filed when all the possible modes of settlement such as mediation and conciliation . The principal thrust of the law in family matters is to make an attempt for reconciliation before processing the disputes in the legal framework and Courts must be fully satisfied about no scope of settlement before passing an order.

Issue No. 3

The Court passed the following guidelines in dealing petitions pertaining to matrimonial disputes

1. In view of the scheme of the 1984 Act the hearing of matrimonial disputes may have to be conducted in camera.
2.  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.
3. 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.
4. In a transfer petition, video conferencing cannot be directed.
5. The directions shall apply prospectively implying that judgment will have effect from 09/10/2017 only.

Conclusion

Key take aways from the 3 judge bench judgment :-

1. The Family Courts have a limited discretion but this discretion will not run counter to the legislative intention that permeates the 1984 Act.
2. The discretion has to rest with the Family Court to be exercised after the court arrives at a definite conclusion that the settlement is not possible
3. In a transfer petition, no direction can be issued for video conferencing. unless both parties file a joint application along with his/her memo of consent seeking hearing by videoconferencing.
4. The judgment passed by 3 judge bench is the prevailing law and has no retrospective application. 

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