Transfer petition in Supreme Court-Flavor of The season

Transfer petition in Supreme Court-Flavor of The season

Contact for budget legal solutions for SUPREME COURT Call@ 9891549997

 

 Yes, this is how the transfer petition in supreme court for matrimonial cases are being addressed by the Hon’ble Supreme Court. Every second wife is before the Supreme Court seeking transfer of the cases from one state to another and perhaps they were lucky enough to get the same as and when the Judges find that the petitioner is the women. But since the harassment suffered by the husband due to the false cases already pending against them and finally the Hon’ble Supreme Court Refusing to transfer a matrimonial dispute to the wife’s convenience, a Supreme Court Bench comprising of Chief Justice H.L. Dattu and Justice A.K. Sikri, 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.”

Contact for budget legal solutions for SUPREME COURT

Hon’ble Supreme Court has stated that these petitions be not disposed of in favor of the wife’s without critically assessing the term “doctrine of forum convenience’ which means –‘the best forum’ or a forum where a fair trial can be had’. Because normally there is a presumption that if a petitioner has filed a case in a court having jurisdiction – it is the best forum. The burden is on the person seeking a transfer to prove to the court that if the proceedings are not transferred then the petitioner would suffer irreparable injustice, on the merits of the case (going unrepresented in the case) and with respect to personal life (loss of job/health/safety issues), would also have to prove that the latter is irreparable in monetary terms and many other factors.

 

Rather as a matter of fact the Husband cannot be always made to suffer and there are judgments passed by the SC wherein he can counter the allegations made by the wife and protect himself from being further harassed. Instances of these could be described as follows:

  1. If the wife claims to have a minor child then grandparents can be asked to look after the child and merely on this ground the petition should not be transferred (Anandita Das v. Sirjit Dey (2006))

 

  1. If the wife claims a far distance then effort to prevent a transfer the husband can make an offer to bear IInd class AC tickets for the woman to travel and her stay expenses. This is normally considered by the court.

 

  1. If the wife claims a threat to her life and she cannot commute strong proof is required to be shown and merely by stating fear to her life the court will not be inclined to transfer the same as held by Hon’ble Supreme Court in Priti Sharma v. Manjeet Sharma –  (2005)– the court, in the case of a wife seeking transfer on the grounds of being unemployed and unable commute, categorically held “merely because petitioner is a lady does not mean she cannot travel” and the transfer petition was dismissed.

 

  1. Men who have kids custody with them can rely onJaishree Banarjee v. Abhirup Banarjee (1997) 11 SCC 107 to get proceedings transferred in their favour.

 

  1. Men can take the courts to the merits of the case and show the false case already filed by the wife and the courts are bound to consider the same while deciding the transfer petitions.

 

Advocate Kapil Chandna (Practicing in Supreme Court of India)

Advocate.kapilc@gmail.com

9899011450

Supreme Court SLP Filing for beginners.

Supreme court SLP filing-some important steps

The special leave petition to the supreme court is maintainable against any order of court or tribunal where there is no appeal lies against the final order of any court.

The Constitution of India under Article 136 vests the Supreme Court of India with a special power to grant special leave, to appeal against any judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in the territory of India.

This is special power, bestowed upon the Supreme Court of India which is the Apex Court of the country, to grant leave to appeal against any judgment in case any substantial constitutional question of law is involved, or gross injustice has been done.

How to file an SLP

  1. The petition should be strictly as per the form, there is a separate form for civil SLP and for criminal there is a special form.
  2. The court fees in case of civil SLP must be annexed as per the schedule in the SUPREME COURT RULES-2013.
  3. Certified copy of impugned order judgement must be there and same description of court name and title will be used for drafting the SLP, otherwise registry will impose objections.
  4. Same parties who were party of proceedings in the High Court must be parties to the proceedings of SLP.
  5. True type copies of documents must be annexed to avoid objection related to dim copies.
  6. Listing performa as per new format must be there.
  7. Synopsis with list of dates and events must be explained properly.
  8. Applications must be annexed separately and mentioned in index.
  9. Condonation of delay application must be annexed with the SLP if more than 90 days delay is there. The requirement in SLP is that delay must be explained
  10. Ensure you do not modify the form of the SLP and have all the points mentioned in the SLP.
  11. Make sure you annex affidavit as per the format prescribed.

cruelty for purpose of divorce

The most used terminology in the courts of law is “Your Honor I cannot continue this sacred relation because of the cruelty committed on me”, but the shocking and sad state of affair is that the opposite party comes with more severe allegations alleging cruelty which the makes the job of the courts impossible to decide the case and resulting into everlasting litigation, mental agony.

Before I say what cruelty is in the terms of law, it is very important to understand the meaning of the word which is “cruel behavior or attitudes” or if we talk in legal perspective “behavior which causes physical or mental harm to another, especially a spouse, whether intentionally or not.”  Since now a days it has become really difficult to tolerate the other person because of the patience level and expectations, most of the cases are coming forward with a tagline divorce on the ground of cruelty. Then the question arises as to what can be termed as cruelty and how it can be proved in the courts of law.

 

And most of the cases fail in the court of law is due to the lack of evidence because the acts committed under cruelty are committed within the four walls of the house and the mere exaggerated allegations to any level goes unproved resulting into injustice to the party who is a genuine sufferer and result into the suffering for the party against whom the allegations are put forward.

 

I wish to quote some instances which could be termed as cruelty and the Hon’ble Courts have time and again have taken those instances as such which goes beyond the purview of the normal wear and tear of life and which actually can be considered as cruelty and making it difficult for one spouse to live with the other or that the marriage has broken irretrievably that the parties cannot be expected to live together under one roof.

 

Instances which could be considered as cruelty and accepted by the Hon’ble Courts as cruelty can be categorized as follows:-

 

1. Act of the wife not allowing her husband to live in matrimonial home constitutes both mental and physical cruelty.

 

2. Where the husband remained unemployed during his stay with his wife and started spending money on liquor indiscriminately, used to come home late at night, gave physical beatings as well as mentally tortured the wife and also demanded share in his wife’s flat.

 

3. Threatening the husband that she would commit suicide, persuaded husband to leave his parents, filed false case under section 498A of the IPC and also dowry case against husband and his family members.

 

4. Conduct of the husband of continues abusing and ugly and foul language and also alleging the wife of having an extra-marital relationship without any good reason will make the relation between the parties a soured relation and as such the parties cannot be expected to live together.

 

5. Verbal abuses and insults by using foul and abusive language, disturbing mental peace and every conduct which causes a mental tension as to affect the health or likely to affect the health of the other spouse will be considered as cruelty.

 

6. A spouse staying away can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing false complaints containing indecent allegations or by initiating number of judicial proceedings making the others spouse’s life miserable.

 

7. Culture, human value, economic and social conditions will be an important factor in deciding the allegations made in the cruelty.

 

8. Lack of mutual trust, confidence, faith and having doubt on each other whenever the other spouse fails to answer the call and making remarks on her character will amount to cruelty, rupturing the matrimonial relation and the other spouse cannot be expected to stay in that environment.

 

9. Where the husband is lethargic, does  not work, is parasitical, selfish or callous provides no money for the household or refuses to undertake payment to meet the household expenses, the wife cannot be expected to stay with the husband.

 

10. Spouses not behaving in a respectful and cordial manner with the parents of each other would be considered as cruelty.

 

11. Constant insults, abuses and accusations of adulterous character which make the married life impossible to be endured, constitute mental cruelty of a kind worse than physical violence.

 

Above mentioned are just the glimpse of the cases in which the Hon’ble Courts have held the have the cruelty being committed by one spouse towards to the other and the courts cannot expect the other spouse to stay in that house wherein he/she has lost their most cherished fundamental right of life with respect and dignity. The Idea of bringing the cruelty as a ground for divorce is to maintain the self respect and dignity of the spouses living under the same roof and who have decided to stay together for their life in all good and bad times.

 

Last but not the least is that whenever the spouses comes before the court of law to file their cases with the weak evidence or lack of evidence, the cases end up in dismissal and harassment, but after the amendment of the Information Act, 2009 any spouse can keep a audio or video recording, messages etc. to be used in the court of law to ensure a

 

KAPIL CHANDNA

ADVOCATE