Judgment Analysis - Himani Virendra Bajaj Vs. Virendra Bajaj

Case title : Himani Virendra Bajaj versus Virendra Bajaj Court : Supreme Court Of India Case Number: Transfer Petition (Civil)  No.549 Of 2017 Judges: Justice SA Bobde and Justice L. Nageswara Rao Date Of order: 06/10/2017

  Issue involved :  1. Deciding transfer petitions filed by wife if mediation is pending in respect of matrimonial disputes.  

2. Outcome of failure of mediation proceedings  

3. Use of Video conferencing in the transfer petitions relating to matrimonial disputes as a remedy if mediations fails and amicable settlement is not reached.  

Facts of the case

The wife filed a petition for transfer of petition No.A3157/2016, titled as “Mr. Virendra Bajaj vs. Ms. Himani Virendra Bajaj”, pending in the Court of Ms. M.M. Thakare, Principal Judge, Family Court at Bandra, Mumbai, to the Court of Principal Judge, Family Court, District West, Tis Hazari Courts, Delhi.  

The matter was also pending in the mediation cell at Tis Hazari Court for an attempt to strike an amicable settlement between the parties.  

Issue involved in the case  

1. Can the Court decide the transfer petition before the outcome of the mediation between the parties and what would happen if the mediation fails ?
2. What can be the outcome if the transfer petition is not entertained by the Supreme Court ?

  The view taken by the Supreme Court

In respect of issue no. 1

The Court held that unless the mediation between the parties does not succeed and fails and the chances of an amicable settlement are defeated, the transfer petition filed at the instance of wife can not be entertained by the Court.  

The Court further held that in case the mediation does not succeed, the trial shall be conducted and facilitated by the Principal Judge, Family Court at Bandra, Mumbai.  

In respect of issue  no. 2  

Further it was said that the transfer petition will not be allowed and the wife would have to contest the matter at a place it has been filed by the husband. If the wife can not reach the place where the case is filed, then she can attend the case through video conferencing.  

The Court held that the case will continue to be contested in the Bandra Court at Mumbai  and of video conferencing facility is not available in the Bandra Court then it is to be done at a suitable place in Mumbai where the possibility to influence the examination of the witness is not present.  

Concluding remarks  

Under Section 25 of the Code of Civil Procedure, 1908 the Supreme Court has the power to transfer any case, appeal or other proceeding to any Court in the country.  

This provision has been most commonly used in matrimonial cases and usually at the instance of the wife. The Court invariably takes a sympathetic view towards the wife’s plea for transfer, but this is not always the case.  

While adjudicating the transfer petitions, the Court has give due weightage to the rights of both husband and wife. There is a very line to be threaded by the Courts which is now being streamlined by judicial activism.  

Like, in the above case where the court has held that if mediation is pending between the husband and wife in respect of a matrimonial dispute, then a transfer petition filed at the instance of wife will not be entertained.  

If the mediation fails, then video conferencing can be allowed at a suitable place where the possibility to influence the examination of the witness is not  present.  

The rules pertaining to the video conferencing have been laid down in Santhini versus Vijay Venkatesh by the Supreme Court on 09/10/2017 which are as follows:-  

1. 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.
2. 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.
3. In a transfer petition, video conferencing cannot be directed.
4.  

The judgment in the Himani Virendra Bajaj vesus Virendra Bajaj is in favour of the husband in respect of transfer petitions. 

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