Husbands cannot be made to suffer every time, says Supreme Court while refusing to transfer matrimonial case

It is a common knowledge that most of the requests made by wives to transfer the matrimonial cases filed against them to the place of their convenience are accepted by the Supreme Court. Thus, if husband and wife are living in different cities (or, in different states), and if the husband files a matrimonial case (such as divorce case, or for custody of the child, or for restitution of conjugal rights, and so on) at the place of his convenience, the Supreme Court would generally agree to transfer such case on the request of wife to the place of her convenience. This is the normal pro-woman practice of the court. However, now a Supreme Court bench headed by the Chief Justice H.L. Dattu has refused to transfer a matrimonial case on the request of the wife by observing as to why should husbands be made to suffer always.

It is noteworthy that under Section 20 of the Civil Procedure Code, a civil case is generally required to be filed at the place where the defendant (i.e., the opposite party) resides or where the cause of action has arisen.

A matrimonial case under the provisions of the Hindu Marriage Act, 1955, can be filed at one of the several places, as laid down in Section 19 of that Act, which is reproduced below:

“19. Court to which petition shall be presented.—Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition resides, or

(iii) the parties to the marriage last resided together, or

(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.”

Thus, a matrimonial case can be filed where the marriage took place, or where the husband and wife last lived together, or where the respondent (i.e., the opposite party) resides, or where the wife is residing (if she is the petitioner), etc.

Of course, if the wife is filing a matrimonial case, she would generally prefer to file the case where she resides. On the other hand, in view of the multiple options being available, usually the husband (if he is the petitioner) would file such case at the place of his convenience. In such cases, the wife is generally inconvenienced since she is required to travel to that other place on the dates when that case is listed. Since delay in our judicial system is a routine, the wife may have to suffer such inconvenience for several visits to the place where the case is filed. This problem is compounded if the wife is not employed and/or is poor and/or has minor kids to look after.

In such circumstances, it has been the practice of the Supreme Court to transfer such matrimonial case on the request of the wife to the place of her choice. Such requests are made under Section 25 of the Civil Procedure Code, which is reproduced below:

“25. Power of Supreme Court to transfer suits, etc.—(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.”

It may be pointed out that while transferring a case under this power, the Supreme Court is not bound to transfer the case to only that place where the jurisdiction lies. It can transfer the case to any place as the court deems fit under the provisions of the above section.

As mentioned above, most of such requests made by wives for transfer of the matrimonial cases, have traditionally been accepted by the Supreme Court with sympathy. Of course, in some particular cases, it may actually mean more hardship to the husband, because in some cases the wife may be in a much better position than the husband.

It is this need that has been taken care of by a bench consisting of Chief Justice H.L. Dattu and Justice A.K. Sikri of the Supreme Court in a decision given on 8 January 2015. The court refused to transfer a matrimonial case from Ghaziabad in Uttar Pradesh to Betul in Madhya Pradesh on the wife’s request despite the fact that she is a permanent resident of Betul.

The Supreme Court observed: “Estranged wives seeking transfer of cases, filed by husbands, to their places of residence has become the order of the day. We had become too liberal in acceding to their requests. But the husbands also have a right. Why the husbands should be always made to suffer.”

Thus, what the Supreme Court appears to be saying is that it may not be proper to blindly transfer all the matrimonial cases on wife’s requests and that the court should also examine in a judicious manner the merits of the case and the hardship caused to both the parties.

One cannot agree more with the court. There are a few cases where the husband may be facing more severe hardships and may perhaps have to be protected. At the same time, one hopes that the general approach of the Supreme Court will continue to be in favour of the women, other things remaining equal. Thus, a balance needs to be maintained with a clear pro-woman tilt wherever other things are equal.

Update (12 January 2015): The decision of the Supreme Court in the aforesaid case (it is a very brief and cryptic order) is reproduced below:

SC Judgment 20150108 by Tilak Marg