Orissa HC Transfers Husband’s Restitution Case To Kendrapada, Citing Wife’s Financial Dependence And 2-Year-Old Daughter

In brief

The question

Whether the husband’s restitution-of-conjugal-rights proceeding should be transferred from Cuttack to Kendrapada, having regard to the parties’ circumstances and convenience.

The court held

The High Court allowed the transfer petition and directed the Family Court, Cuttack, to transmit the case record to the Family Court, Kendrapada, preferably within one week of production of the certified judgment; the Kendrapada court was to re-register the case if necessary and proceed in accordance with law.

It also directed

The Court also issued directions concerning virtual appearances, physical attendance when ordered, and cooperation without unnecessary adjournments.

The interim order was vacated, and the connected interlocutory application was disposed of.

01Facts

The wife petitioned under Section 24 CPC to transfer the husband’s proceeding for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, from the Family Court, Cuttack, to the Family Court, Kendrapada.

p. 1

She stated that she lived with her parents at Kendrapada after separation, had no independent income, and cared for their two-year-old daughter.

p. 2

She had also sought maintenance under Section 144 BNSS, 2023, before the Family Court, Kendrapada.

pp. 2–3

The husband opposed transfer on the ground that his employment at Dhenkanal would make travel to Kendrapada difficult, but consented to the petition being heard at the admission stage with his oral objection.

pp. 2–3

Mediation had failed.

p. 2

02Issues

i.Whether the husband’s restitution-of-conjugal-rights proceeding should be transferred from Cuttack to Kendrapada, having regard to the parties’ circumstances and convenience.

pp. 1, 4–5

ii.Whether arrangements for virtual appearances should be provided to accommodate the parties.

p. 3, 5

03Law Applied

Section 24 CPC empowers the High Court to transfer a suit or proceeding where the ends of justice require it.

p. 4

In matrimonial transfer matters, the court should consider the parties’ economic circumstances, social position, behavioural pattern, standard of living, livelihood and sources of support; in the prevailing socio-economic context, the wife’s convenience will generally be a relevant consideration.

p. 4

The Court applied the Supreme Court’s statement of these principles in N.C.V. Aishwarya v. A.S. Saravana Karthik Sha, 2022 SCC OnLine SC 1199.

p. 4

Provisions in the judgment · 3 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 24

Hindu Marriage Act, 1955 Section 9

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 144

04Reasoning

The Court considered the wife’s lack of independent income, her care of a two-year-old child, and her dependence on her parents at Kendrapada, together with the husband’s employment at Dhenkanal and his objection that travel would require frequent leave.

pp. 2–4

Applying the principle that the wife’s convenience is generally to be considered in matrimonial transfer matters, the Court concluded that the circumstances supported transfer and that the husband would not be unduly prejudiced.

pp. 3–4

It also addressed appearance by virtual mode, subject to the applicable rules and physical attendance when required for effective hearings, including witness examination and cross-examination.

p. 5