‘Issuance of notice in every transfer plea seldom advances justice’: Raj HC transfers matrimonial case

Jaipur: The Rajasthan High Court has observed that routine issuance of notice in matrimonial transfer petitions, followed by proceedings remaining pending for years even as interim stay orders continue to operate, seldom advances the cause of justice, while allowing a wife’s plea to transfer her husband’s matrimonial case to the court nearest her residence.

Justice Farjand Ali, allowing a transfer application filed by the wife, directed that proceedings instituted by her husband under Section 13(1-A) of the Hindu Marriage Act before the Additional District Judge No. 1, Rai Singh Nagar, be transferred to the Additional District Judge, Suratgarh, where the wife resides, and be heard henceforth exclusively by the Family Court, District Sri Ganganagar.

The petitioner-wife submitted that she was presently residing at Suratgarh and was not in a position to undertake repeated travel to Rai Singh Nagar, approximately 75 kilometres away, for every date of hearing, which would cause grave inconvenience, financial hardship and avoidable physical and mental distress. The respondent-husband, presently posted as a GD Officer Commandant with the BSF at Kolkata, did not appear in the proceedings.

At the outset, the Court made general observations on the practice of issuing notice in matrimonial transfer petitions:

“Issuance of notice in every matrimonial transfer petition and keeping such matters pending for years together, particularly where interim stay orders continue to operate meanwhile, seldom advances the cause of justice. The experience of this Court demonstrates that in a considerable number of matters, transfer petitions remain pending merely at the stage of service and completion of pleadings for two to three years. Such prolongation neither subserves the institutional interest of expeditious adjudication nor secures the welfare of litigating spouses already embroiled in matrimonial discord.”

The Court noted that Section 24 of the Code of Civil Procedure confers wide powers on the High Court to transfer proceedings, either on a party’s application or suo motu, whenever the ends of justice so require, and that where the balance of convenience and settled legal principles clearly favour one forum, insisting on prolonged procedural formalities would defeat the very object of the provision.

The Court also took note of the practical realities of matrimonial litigation, observing that proceedings under Section 498-A IPC, the Domestic Violence Act, Section 125 CrPC, and Sections 9 and 13 of the Hindu Marriage Act are typically instituted at the place where the wife resides, so that the husband is in any event required to appear before courts at that place. Requiring the wife to simultaneously contest connected proceedings at a distant station, the Court held, results in avoidable multiplicity of travel and hardship for both sides, whereas consolidation at one place minimises inconvenience and reduces the possibility of conflicting orders.

Addressing the principle of audi alteram partem, the Court held that while it remains a foundational rule of natural justice, it is not inflexible, and that a simple transfer of proceedings from one competent forum to another does not extinguish or dilute the substantive rights of either party. Since the respondent was already required to appear before courts at the place to which transfer was sought, the Court found that issuing notice would only prolong the litigation without serving any meaningful purpose, and dispensed with service on the respondent.

The Court relied on the Supreme Court’s decision in Vinisha Jitesh Tolani @ Manmeet Laghmani v. Jitesh Kishore Tolani, (2010) 5 SCC 748, which held that in matrimonial disputes instituted by the husband against the wife, the convenience of the wife deserves paramount consideration, and such proceedings should ordinarily be adjudicated at a place proximate to her residence.

The transfer petition was accordingly allowed, and the pending application was transferred to the Additional District Judge, Suratgarh, for adjudication in accordance with law. The Court directed the transferor court to forthwith transmit the case record along with a report of all pending or subsequently instituted matrimonial proceedings between the parties, and directed that the concerned courts coordinate future listings to minimise multiplicity of appearances. The Court clarified that it had not expressed any opinion on the merits of the underlying dispute, which would be independently adjudicated by the competent court. The stay application and all other pending applications were disposed of accordingly.

Counsel for petitioner: Mr. Monal Chugh

Counsel for respondent: None appeared