TRANSFER PETITION OF WIFE IS TO BE CONSIDERED

   IN THE SUPREME COURT OF INDIA


              CIVIL ORIGINAL JURISDICTION


      TRANSFER PETITION (CIVIL) NO.1127 OF 2008




Vinisha Jitesh Tolani
@ Manmeet Laghmani                            ..Petitioner


                            Vs.


Jitesh Kishore Tolani                         ..Respondent


                           WITH




       TRANSFER PETITION (CRL.) No.74 of 2009






                      J U D G M E N T




ALTAMAS KABIR, J.




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
                                                                          2








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
                                                             3








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
                                                           4








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
                                                                    5








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,
                                                                  6








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
                                                                           7








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


respondent.




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
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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


allowed.




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
                                                                9








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
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      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
      notification."
                                                                    1








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
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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


Goa.




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 &
                                                                     1








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
                                                                      1








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
                                                                      1








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
                                                                                     1








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.








                                         ................................................J.
                                                  (ALTAMAS KABIR)






                                         ................................................J.
                                                  (CYRIAC JOSEPH)
New Delhi
Dated: 28th April, 2010.
                                                                         1








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


TRANSFER PETITION (CIVIL.) NO(s). 1127 OF 2008


VINISHA JITESH TOLANI @ MANMEET LAGHMANI                  Petitioner(s)


                       VERSUS


JITESH KISHORE TOLANI                                     Respondent(s)


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


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




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
allowed.
       The Transfer Petition (Crl.) No. 74 of 2009 is
dismissed.
              (Ganga Thakur)                            (Juginder Kaur)
             PS to Registrar                              Court Master


       Signed reportable judgment is placed on the file.
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