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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,

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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

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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

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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

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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

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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

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Supreme Court or else the matter

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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

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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.

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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.

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