Full Judgment Text
Transfer Petition (C) No.1475 of 2021
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (C) NO. 1475 OF 2021
DELMA LUBNA COELHO …PETITIONER
Versus
EDMOND CLINT FERNANDES …RESPONDENT
J U D G M E N T
Rajesh Bindal, J.
1. The present petition has been filed by the petitioner
wife seeking transfer of M.C. No. 331 of 2021 titled as “Dr.
Edmond Clint Fernandes vs. Mrs. Delma Lubna Coelho”
pending before the Family Judge at Mangaluru, Karnataka
to the Family Court at Bandra, Mumbai, Maharashtra.
2. Learned counsel for the petitioner submitted that
the parties met on Facebook in the month of December,
2019 and they got married on 05.12.2020 as per Christian
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.04.18
17:31:03 IST
Reason:
rites and customs at Our Lady of Miracles Church,
Mangaluru.
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Transfer Petition (C) No.1475 of 2021
3. It is pleaded that after the marriage, the petitioner
was living with the respondent at her matrimonial home at
Mangaluru where she was illtreated, insulted and
humiliated by the respondent and his family members. She
was accused for each and everything and offensive language
was used against her. The respondent, in the pretext of
giving her a break for 1015 days, booked a oneway ticket
for the petitioner and sent her to Mumbai on 15.01.2021.
Thereafter, he disconnected all relations with her. On
05.07.2021, after COVID19 Pandemic restrictions were
eased, the petitioner came back to Mangaluru. However,
she was denied entry in her matrimonial home by the
respondent and his family members. She was completely
broken down. She approached the Police Station at
Pandeshwar, Mangaluru and lodged a complaint.
4. The Superintendent of Police intervened and
called respondent to the Police Station. The respondent
stated that he has already issued a divorce notice and his
petition seeking divorce is in the process of filing. Despite
repeated requests made by the petitioner, the respondent
did not mend his ways.
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Transfer Petition (C) No.1475 of 2021
5. On 06.08.2021, she replied to the legal notice
stating that she is ready and willing to come to her
matrimonial house and wanted to live a happy married life.
On 10.08.2021, she received summons of the Court along
with copy of the divorce petition filed in the Family Court at
Mangaluru.
6. Learned counsel for the petitioner submitted that
she is living with her old aged parents at Mumbai. There is
no one at her home to accompany her from Mumbai to
Mangaluru to contest the petition, which is more than 1,000
km from Mumbai. She does not even know Kannada
language. Whereas the respondent will not face any problem
in case the petition is transferred to Mumbai (Maharashtra).
The parties lived together only for a period of about 40 days.
It is stated by the petitioner that if given an opportunity, she
would try to reworkout the marriage. The petitioner was
forced to take up job with a bank as the respondent refused
to support her financially. In case, she frequently travels to
Mangaluru to attend the hearings, she is at the risk of losing
her job being fresher. It will not be possible for her to bear
the cost as well.
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Transfer Petition (C) No.1475 of 2021
7. On the other hand, learned counsel for the
respondent submitted that though the parties had met on
social media, one year prior to their marriage, she had even
visited to Mangaluru after COVID19 Pandemic/restrictions
were eased and they met frequently. She was well aware of
the family background of the respondent and also the status
of his family. In fact, immediately after the marriage, the
behaviour of the petitioner was not the same as was prior to
the marriage. The respondent resides with his aged parents.
He is a doctor by profession. The respondent is also the
founder and CEO of a global health organization involved in
philanthropic activities. Initially petitioner was proud of this
but later on the attitude changed. The respondent also paid
professional fees for engineering grade to ensure petitioner’s
financial independence as desired by her even prior to their
marriage. She now misbehaved with the respondent’s
parents as she wanted to live a luxurious life. All positive
points prior to the marriage were now negative.
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Transfer Petition (C) No.1475 of 2021
8. In fact, the petitioner being a permanent resident
of Canada, was habitual of that lifestyle. The marriage was
just to spoil the life of the respondent though initially, it was
claimed that she loves Indian culture and traditions.
Though it is alleged that the respondent had shunted out
the petitioner from matrimonial home, however, it was her
own decision to move out. Immediately, after reaching
Mumbai, she applied for a job in ICICI Bank and sent her
resignation from the Organization on 19.02.2021, where she
was working with the respondent. She had joined the job in
the Bank in 05.04.2021. Number of efforts were made by
the respondent to reconcile the marriage but with no result
and the efforts in the mediation also failed.
9. The respondent was also kept in dark about
location of new flat worth ₹ 2,00,00,000/ (Rupees two
crores only) purchased by her and her family. The
respondent came to know about the address when she filed
a complaint at the Women’s Police Station, on 06.07.2021.
As a counterblast to the Divorce Petition filed by the
respondent, the petitioner has filed petition for restitution of
conjugal rights. He further submitted that it is a case of
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Transfer Petition (C) No.1475 of 2021
irretrievable breakdown of marriage as even during repeated
mediations, the parties could not reconcile. This Court can
grant divorce under Article 142 of the Constitution of India
without consent of the parties. Reliance has been placed
upon judgments of this Court in R. Srinivas Kumar v. R.
and v.
Shametha (2019) 9 SCC 409 Munish Kakkar
Nidhi Kakkar (2020) 14 SCC 657 .
10. Number of other arguments were also raised on
merits, however, for the limited purpose of the consideration
on the prayer of the petitioner for transfer of the case, the
same are not required to be noticed in much detail.
11. At the time of hearing, the petitioner was present
inperson whereas the respondent had joined through video
conferencing.
12. Heard learned counsel for the parties and the
partiesinperson.
13. The marriage had taken place on 05.12.2020.
The parties lived together at their matrimonial home only till
15.01.2021.
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Transfer Petition (C) No.1475 of 2021
14. From a perusal of order dated 17.12.2021, it is
evident that there being possibility of settlement of the
matrimonial dispute, the matter was referred to Supreme
Court Mediation Centre. The Order passed by this Court on
04.03.2022 records that the efforts of mediation failed. The
respondent sought time to file affidavit for satisfying the
Court that there is an irretrievable breakdown of marriage
and this Court should exercise its jurisdiction under Article
142 of the Constitution of India to dissolve the marriage.
15. Order passed by this Court on 25.03.2022 records
that another effort was required to be made through
mediation for resolution of dispute between the parties. It
was referred to Maharashtra State Legal Service Authority.
The Marriage Counsellor was also required to be associated.
16. The order passed by this Court on 02.09.2022
reads as under :
“ It appears that the marriage has not worked
from the initial period of time itself. The parties got
married after having met on facebook.
The problem is what the wife demands and
what the husband says is capable of paying.
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Transfer Petition (C) No.1475 of 2021
Let both the parties file affidavits alongwith list
of movable/immovable assets. They should also file
their last three years’ Income Tax Returns.
Two weeks’ time is granted to file necessary
affidavits.
th
List on 29 September, 2022.
The parties to either remain present in the Court or
connect virtually for which the connection will be
granted by the Registry.”
17. From the order dated 13.10.2022, it is evident
that the petitioner may be working in Canada as she stated
that she wound up her work in Canada and is now living in
India. They agreed to take assistance of a marriage
counsellor. Justice S.J. Vazifdar, former Chief Justice of
Punjab and Haryana High Court was appointed as a
Mediator. The report has been received from the Mediator
stating that despite spending about 50 hours in different
sessions, the parties and their family members could not
arrive at a settlement and the mediation failed, as per the
report dated 08.02.2023. It is specifically recorded by the
Mediator in his report that during four months, several
meetings were held with the parties and throughout the
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Transfer Petition (C) No.1475 of 2021
petitioner was in Canada and she attended the meetings
through Video Conferencing.
18. Number of Transfer Petitions are filed in
matrimonial cases, primarily by the wives seeking transfer of
the matrimonial proceedings initiated by the husband. This
Court normally has been accepting the prayer made while
showing leniency towards ladies. In Anindita Das v . Srijit
, this Court observed that may be
Das (2006) 9 SCC 197
this leniency was being misused by women. Hence, each
and every case has to be considered on its own merits.
19. In the facts of this case in hand, the petitioner is a
permanent resident of Canada. She had shifted there in the
year 2014 and was working there on a wellpaid job,
however, came to India for the matrimonial alliance. She is
presently based at Mumbai, Maharashtra with her parents
and stated to be working in ICICI Bank. There is no child
born out of the wedlock. The relation started after the
parties met on Facebook. As far as the respondent is
concerned, he is a doctor by profession and is living at
Mangaluru, Karnataka. Divorce Petition has been filed by
the husband at Mangaluru where he resides with his aged
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Transfer Petition (C) No.1475 of 2021
parents. Thereafter, the wife filed a petition for restitution of
conjugal rights at Mumbai, Maharashtra.
20. Considering the status of the parties and the fact
that it is a petition filed by the wife seeking transfer of case
filed by the husband from Mangaluru, Karnataka to
Mumbai, Maharashtra, in our view no case is made out for
transfer of the petition from Mangaluru, Karnataka to
Mumbai, Maharashtra. The wife is a permanent resident of
Canada. She must be travelling abroad regularly. As is
evident from the observations in the Mediation Report dated
08.02.2023 submitted by Justice S.J. Vazifdar, the
petitioner was in Canada throughout the mediation process
and attended the proceedings online. There is no child born
out of wedlock to be taken care of. Both the parties are well
educated and engaged in their own jobs and professions.
She can travel to Mangaluru to attend the hearing of the
case and can also seek exemption from appearance
whenever required. Though, at present, considering the
financial condition of the parties on the basis of material
which has come on record, we do not find that any ground is
made out for issuing direction to the respondent to pay the
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Transfer Petition (C) No.1475 of 2021
expenses to the petitioner for travelling to Mangaluru.
However, still in case she feels like seeking reimbursement
of expenses, she shall be at liberty to file application before
the court concerned, which may be examined on its own
merits.
21. We do not find this to be a fit case for exercise of
power under Article 142 of the Constitution of India as good
sense may prevail on the parties. They had lived together
only for 40 days. It takes time to settle down in marriage.
The judgments relied upon by the learned counsel for the
respondent are distinguishable as in those cases
proceedings had travelled up to this Court after decision by
the Courts below in divorce proceedings, where the parties
had led evidence in old matrimonial dispute. There was
sufficient material on record and the ground on which the
marriage was dissolved in exercise of power under Article
142 of the Constitution of India, was irretrievable breakdown
of marriage which otherwise is not a ground in the Hindu
Marriage Act,1955 for dissolution of marriage.
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Transfer Petition (C) No.1475 of 2021
22. As far as appearance of the parties through video
conferencing is concerned, sufficient guidance has been
given by this Court in the case of Santhini v. Vijaya
Venketesh (2018) 1 SCC 1 .
23. For the reasons mentioned above, we do not find
any merit in the present petition. The same is accordingly
dismissed.
…….……………J.
[Rajesh Bindal]
…….……………J.
[Aravind Kumar]
New Delhi
18.04.2023
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