Vinisha Jitesh Tolani
@ Manmeet Laghmani                            ..Petitioner


Jitesh Kishore Tolani                         ..Respondent


       TRANSFER PETITION (CRL.) No.74 of 2009

                      J U D G M E N T


1.     This is a petition filed by the wife of the

respondent under Section 25 of the Code of Civil

Procedure for transfer of Matrimonial Petition No.9

of   2008   pending   before   the   Civil   Judge,   Senior

Division,       at    Vasco-da-Gama,        Goa,    to        a    Court   of

competent jurisdiction in Delhi.

2.      The case of the petitioner is that she is a

Sikh    by      religion       and    was    born        in       Kabul    in

Afghanistan on 16th October, 1984.                       Till January,

1998,     she        pursued    her     primary          education         in

Afghanistan. Her family shifted to Delhi in the

month of February, 1988, where she continued to

live    with         her    grandparents.           She           thereafter

continued her studies at the Guru Harkrishan Public

School, Nanak Piao, Rana Pratap Bagh, Delhi, and

continued her education there till 1999.

3.      The petitioner's father who had stayed behind

in Kabul on account of his business commitments

till 1992, finally shifted to London where he was

granted      Afghan        Refugee     Asylum       by        the    United

Kingdom. In May, 2001, the petitioner also migrated

to United Kingdom where her parents had been given

British Nationality.

4.     While in the United Kingdom, the petitioner

started her own business and was self-employed and

independent till she got married to the respondent

in October, 2007.     The respondent is a partner in a

construction    business     with    his   father   under   the

name and style of Tolani Developers at Panaji, Goa.

5.     It   appears   that     the    petitioner      met   the

respondent through her brother-in-law who were both

Merchant Naval Officers and, thereafter, talks of

marriage between the petitioner and the respondent

were commenced. The Rokka ceremony was performed at

London and the marriage was fixed in New Delhi.

However, on the insistence of the respondent the

marriage was performed before the Civil Registrar

of   Mormugao   Taluka,    Vasco-da-Gama,      Goa,    on   15th

November, 2007 and the same was registered in the

presence    of    three   witnesses   arranged        by   the

respondent.      Thereafter, the petitioner along with

the respondent shifted to a flat in Kamat Place,

Mangoor Hill in Vasco-da-Gama, Goa.             According to

the petitioner, her troubles began thereafter and

in the month of February, 2008, she was informed by

the respondent and his parents that she had to go

to London for completion of certain formalities as

the marriage registration had not been accepted by

the   authorities   and   the   marriage    was   a   nullity

according   to    them.   Ultimately,      on   arriving   at

London, she was informed by the Indian Consulate

that since the marriage had been performed within

India, the formalities had to be completed within

India itself.

6.     Several incidents occurred thereafter which

caused her to commute between the United Kingdom

and India till finally she took up residence in a

rented accommodation in New Delhi.         During the said

period     the    petitioner        was    served    with      certain

papers from the Court and she had no option but to

engage a lawyer to obtain a copy of the petition

filed by the respondent to enable her to protect

her rights.        To her surprise she found that the

matter had been proceeded with ex-parte, without

even serving summons to her, showing her address as

Flat No.12, 2nd Floor, Kamat Place, Mangoor Hill,

Vasco-da-Gama,      Goa,      although,     it    was     within    the

knowledge    of    the    respondent       that     she   no   longer

resided    in     the    said   flat.      The    petitioner       also

discovered       that    proceedings        for     declaring       her

marriage to be a nullity had been commenced while

she was in London and much before she returned to

India after her marriage. Even when the petitioner

was   in   India,       she   was    not    informed      about     the

pendency of the said proceedings during her stay

between April, 2008 to July, 2008.                  This compelled

her to fight for her rights while staying at Delhi,

but   it    was      near    impossible      to     contest      the

litigation filed at Goa, as a result of which the

petitioner     was     compelled      to    file     the     present

transfer petition.

7.    Appearing        in     support       of     the      Transfer

Petition,     Mr.     S.K.    Sharma,       learned        Advocate,

submitted that the marriage between the petitioner

and   the    respondent      had     been   conducted       in   Goa

according    to     Hindu    rites    and    customs,       on   25th

October,     2007.     Subsequently,        the    marriage      was

registered on 15th November, 2007, also at Goa.                   On

18th April, 2008, the respondent filed a petition

under Section 12 of the Hindu Marriage Act, 1955,

for   annulment       of    the    marriage,       although,     the

petitioner was then residing in the United Kingdom

having been given the status of an Afghan refugee.

However, between 1989 and 1999, the petitioner and

her parents lived in Delhi and it is only in 1999

that the petitioner left for the United Kingdom

along with her parents.             It was also submitted that

the   petitioner          came   back     to    India       in     order    to

contest the petition filed by the respondent for

annulment      of    the     marriage      between         him     and     the

petitioner in Goa. Learned counsel submitted that

having      lived    in    Delhi    for     about      10     years,       the

petitioner          has     a      circle        of        friends         and

acquaintances in Delhi to provide her support for

contesting      the       annulment      petition          filed    by     the

respondent, which she would not be in a position to

do    in     Goa,     where        she     has        no     friends        or

acquaintances.        In fact, the petitioner went to Goa

for   the    first    time       after    her    marriage          with    the


8.    Mr. Sharma submitted that this was a fit case

where an order for transfer, as prayed for, was

required to be made in keeping with the decision of

this Court in Sumita Singh vs. Kumar Sanjay [(2001)

10 SCC 41]. In the said decision, it was held that

since it was a matrimonial proceeding instituted by

the husband against the wife, the convenience of

the wife had to be considered in contesting the

suit and, accordingly, the matrimonial proceedings

ought to be transferred to Delhi, where the wife

was residing.         Mr. Sharma submitted that this was a

case where the facts are more or less similar and

hence    the    transfer       petition     was    liable     to   be


9.      Ms.     Suruchi        Aggarwal,        learned     Advocate

appearing       for      the     respondent-husband,             while

opposing       the    stand     taken      on     behalf    of     the

petitioner, denied that the petitioner was in fact

living in Delhi.          Ms. Aggarwal submitted that the

petitioner was a resident of the United Kingdom

where she stayed with her parents on the basis of

the residential status of an Afghani refugee, as

granted to her by the U.K. Government.                    It did not

really matter to her whether the petition under

Section   12   of   the    Hindu    Marriage     Act   was    heard

either    in   Delhi   or    in    Goa.        Furthermore,     Ms.

Aggarwal also raised a point of some interest to

the   effect    that      civil    proceedings     relating     to

marriage were governed by the Civil Code of 1867

which was in force in Goa and that as a result, the

petition for annulment could only be tried in the

State of Goa and not in any other State.                        Ms.

Aggarwal urged that the family laws of Goa, Daman &

Diu apply uniformly to all persons residing within

the   State    of   Goa     and    that   by    virtue   of     the

provisions of the Goa, Daman & Diu (Administration)

Act, 1962, enacted on 27th March, 1962, provision

was made for continuance of existing laws and their

adaptation.     Learned counsel referred to Section 5

of the Act which reads as follows :-

      "5.    Continuance of existing laws and
      their adaptation.  (1) All laws in force
      immediately before the appointed day in
      Goa, Daman and Diu or any part thereof
      shall continue to be in force therein

      until amended or repealed by the competent
      Legislature or other competent authority.

      (2)   For the purpose of facilitating the
      application of any such law in relation to
      the administration of Goa, Daman and Diu
      as a Union Territory and for the purpose
      of bringing the provisions of any such law
      into accord with the provisions of the
      Constitution, the Central Government may,
      within two years from the appointed day,
      by   order,   make    such    adaptations  and
      modifications, whether by way of repeal or
      amendment,    as    may    be    necessary  or
      expedient and thereupon, every such law
      shall    have    effect     subject    to  the
      adaptations and modifications so made."

10.     Ms. Aggarwal also pointed out that by virtue

of    Section   6   of   the   aforesaid   Act,   the   Central

Government      was      empowered   to    extend   different

enactments to Goa, Daman & Diu,and the same reads

as follows :-

      "6. Power to extend enactments to Goa,
      Daman and Diu. The Central Government may,
      by notification in the Official Gazette,
      extend    with   such    restrictions   or
      modifications as it thinks fit, to Goa,
      Daman and Diu any enactment which is in
      force in a State at the date of the

11.     Relying    on    Shri     M.S.       Usgaocar's      book    on

Family    Laws    of    Goa,    Daman    &    Diu,   Ms.     Aggarwal

submitted that family law in Goa treats the law of

marriage as a civil contract.                 It was pointed out

that Article 3 of the Chapter on Civil Marriage and

its     solemnization     provides       that      all     Portuguese

shall     solemnize       their         marriage         before     the

respective    officers     of    Civil       Registration,        under

the conditions and in the manner established in

civil law, and only such marriage would be valid.

Ms. Aggarwal contended that having regard to the

provisions of the Civil Code as prevalent in Goa,

the pending proceedings could only be heard and

disposed of within the State of Goa.                 Reference was

made by Ms. Aggarwal to a decision of the Bombay

High Court in LPA No.31 of 1998, Monica Variato vs.

Thomas Variato [(2000) 2 Goa L.T. 149], in which it

was held that the Special Marriage Act, 1954, did

not have any application in the State of Goa since

the same had not been extended to the State of Goa.

It    was   ultimately    held    that    even    applying   the

provisions of Private International Law and bearing

in mind the various personal laws in the country,

it would be the Civil Court exercising jurisdiction

in divorce matters in the State of Goa that could

hear    and    decide    the    petition.        Ms.   Aggarwal,

therefore, urged that it is only the Civil Court in

Goa    which    would    have    the   jurisdiction     to   try

matrimonial disputes and no other Court would have

jurisdiction     in     that    regard.     Accordingly,     the

transfer petition had to fail and the annulment

petition would have to be heard within the State of


12.     We have carefully considered the submissions

made on behalf of the respective parties, and, in

particular, the submissions made by Ms. Aggarwal

with regard to the application of the Goa, Daman &

Diu (Administration) Act, 1962, the Civil Code as

enacted on 25th December, 1910, and the provisions

of the Law of Marriage as a Civil Contract, which

came into force in Goa, Daman and Diu with effect

from 26th May, 1911.

13.     As far as the Civil Code as enacted on 25th

December, 1910, and the provisions of the law of

Marriage as a Civil Contract in Goa, Daman and Diu

which   came    into   force      on     26th    May,      1911,    are

concerned, we are unable to agree with Ms. Aggarwal

that all marriages performed within the territory

of Goa unless registered should be void.                    The said

provision was altered by the decree of 22nd January,

1946, which restored the validity of both Catholic

marriages      and   Hindu     marriages.             Two       Hindus,

therefore,     can   contract     a    marriage       according      to

Hindu    religious     rites      or     by     way   of    a      civil

marriage.    Section    2    of    the    Hindu       Marriage      Act

extends the operation of the Act to the whole of

India except Jammu and Kashmir and also applies to

Hindus domiciled in the territories to which the

Act extends who are outside the said territories.

In    other    words,       the     provisions       of    the     Hindu

Marriage      Act,    1955,       would    be    applicable      to   the

petitioner's case and can be heard by any Court

having jurisdiction within the territories to which

it applies.

14.    We     are    not   convinced        with   the     submissions

made by Ms. Aggarwal that the annulment proceedings

cannot be heard outside the State of Goa in view of

the existing laws which made the Civil Code and the

laws relating to marriage applicable to all persons

residing within the State of Goa.                    In addition to

the above, Sections 5 and 6 of the Goa, Daman & Diu

(Administration)           Act,     1962,       indicate    that      the

Central     Government        has    the    authority       to   extend

enactments applicable to the rest of the country.

In other words, even if it were to be held that it

is the customary law in Goa which would prevail

over   the    personal     law    of   the     parties,     the    same

could not be a bar to the transfer of the matter

outside the State of Goa to any other State.                       What

would be of relevance is the finding arrived at by

the Bombay High Court in Goa in Monica Variato's

case (supra) that even applying the principles of

Private International Law, bearing in mind various

personal     laws    in   this    country,       even   though     the

spouses      are    domiciled     in     Goa    in   respect      of    a

marriage performed outside Goa but in any other

State of the Union, they would be governed by their

personal laws in so far as dissolution of marriage

is   concerned.      Notwithstanding           the   fact   that    the

marriage between the parties had been conducted in

Goa, the same having been conducted under their

personal laws and under Hindu rites and traditions,

we are satisfied that the claim of the petitioner

is   justified      and   there    can    be    no   difficulty        in

allowing the prayer of the petitioner.

15.   We, accordingly, allow the Transfer Petition

(Civil) No.1127 of 2008 and direct that Matrimonial

Petition No.9/2008/A titled Jitesh Kishore Tolani

Vs.   Vinisha    Jitesh    Tolani    @     Manmeet                  Laghmani

pending   in    the   Court    of    Civil         Judge,                 Senior

Division, at Vasco-da-gama, Goa, be transferred to

the   Family    Court     at   Tis   Hazari,               Delhi,                 for

disposal, in accordance with law.

16.   Transfer Petition (Crl.) No.74 of 2009 filed

by the husband is, therefore, dismissed.

                                                  (ALTAMAS KABIR)

                                                  (CYRIAC JOSEPH)
New Delhi
Dated: 28th April, 2010.

ITEM NO. 1A                 Court No.3                  SECTION XVIA
(For judgment)

                S U P R E M E      C O U R T   O F    I N D I A
                                RECORD OF PROCEEDINGS


VINISHA JITESH TOLANI @ MANMEET LAGHMANI                  Petitioner(s)


JITESH KISHORE TOLANI                                     Respondent(s)

WITH T.P.(CRL) NO. 74 of 2009

Date: 28/04/2010        This Petition was called on for judgment

For Petitioner(s)          Mr. S.K. Sharma,Adv.
                           Mr. Dhruv Kumra,Adv.
                           Mr. Sanjay Jain,Adv.

For Respondent(s)          Ms. Suruchii Aggarwal,Adv.

       Hon'ble Mr. Justice Altamas Kabir pronounced the
Judgment   of    the    Bench   comprising      His   Lordship,     and
Hon'ble Mr. Justice Cyriac Joseph.
       The    Transfer     Petition   )   No.    1127   of   2008   is
       The Transfer Petition (Crl.) No. 74 of 2009 is
              (Ganga Thakur)                            (Juginder Kaur)
             PS to Registrar                              Court Master

       Signed reportable judgment is placed on the file.


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