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PETITIONER: ANITA LAXMI NARAYAN SINGH

       Vs.

RESPONDENT: LAXMI NARAIN SINGH

DATE OF JUDGMENT24/03/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) VENKATACHALLIAH, M.N. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1992 AIR 1148            1992 SCR  (2) 316  1992 SCC  (2) 562        JT 1992 (2)   349  1992 SCALE  (1)722

ACT: Hindu Marriage Act, 1955 :      Section  13-Divorce-Petition by husband at  Bombay-Wife required  to travel a long distance to  defend  proceedings- Transfer petition by wife-Supreme Court directing sufficient expenses for wife’s stay and travel expenses-Grant of meagre amount of wife by Family Court-Consequent inability of  wife to  attend proceedings-Ex-parte divorce decree in favour  of husband-Held  grant  of meagre amount of  wife  resulted  in denial of justice-Ex-parte decree of divorce set aside.

HEADNOTE:      The  respondent was married to appellant at  Ghaziabad. He filed a Divorce Petition at Bombay and the appellant-wife filed  applications  for  maintenance and  expenses  of  the divorce  proceedings.   Subsequently she  filed  a  Transfer petition in this Court for transferring the case from Bombay to Ghaziabad which was disposed by this Court directing that (i) the respondent-husband would pay Rs.2500 for wife’s next visit  to Bombay; and (ii) the Family Court would insist  on the husband depositing the to and fro fare for the wife  and her  companion and also an amount sufficient for their  stay in  Bombay  on each visit.  The Family Court  dismissed  the wife’s  application for interim maintenance and expenses  of proceedings  on the ground that she was  gainfully  employed but  awarded Rs. 700 as expenses and further  directed  that she will be paid an additional amount of Rs. 150 per day  in case  of her stay for more than one day at Bombay.   Against this  order the appellant filed a Special Leave petition  in this  Court.   Since she was held up for  attending  to  her petition in this Court the Family Court granted an  ex-parte decree  of divorce to the husband.  She filed a petition  in this  Court as she could not attend the Court on account  of her inability to meet the expenses for travel and  residence in Bombay.      Allowing the appeal, this Court,                                                        317      HELD  :  1. While disposing  the  appellant’s  Transfer Petition  this  Court had clearly directed that  the  Family Court will insist on the husband not only depositing the  to

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and  fro travel expenses for the wife and her companion  but also  an amount sufficient for their stay in Bombay on  each visit.   But the Family Court has been far from just to  the wife  who was required to travel a long distance  to  defend herself.   Nothing  has  been allowed by  way  of  transport charges and lodging and boarding charges even if she has not to stay for an additional day in Bombay. [320 D-F]      2. The interim order passed by the Family Court is  for reasons  best known to it, highly biased.  This is  more  so because this Court’s order granting expenses to visit Bombay provided sufficient guideline for determining the quantum of expenses  to be awarded.  Besides the Family Court  has  not awarded  any amount to meet the cost of the  proceedings  on the specious plea that the appellant is gainfully  employed. To say the least the order is far from satisfactory and  has resulted in gross denial of justice.  The impugned order  is accordingly set aside. [321 A-C]      3. As the interim order made it impossible for the wife to  contest  the divorce petition in the  Family  Court  and facilitated  an  ex-parte divorce decree in  favour  of  the husband, in the extraordinary and peculiar circumstances  of this case, the ex-parte divorce decree is set aside. [321 C- D]      4.  Interest  of  justice  requires  transfer  of   the proceedings  from the Family Court, Bombay to  the  District Court,  Ghaziabad.   The restored divorce  proceedings  will stand  transferred from Family Court Bombay to the  District Court, Ghaziabad. [321 E-F]

JUDGMENT:      ORIGINAL JURISDICTION : Interlocutory Application No. 4 of 1991 in Transfer Petition (Civil) No. 521 of 1990.      (Petition under Section 25 C.P.C.)                WITH      C.A. No. 1119 of 1992                WITH      C.A. No. 1118 of 1992                                                        318      Mrs. Sureshtha Bagga for the Appellant.      Vimal Dave for the Respondent.      The Judgment of the Court was delivered by      AHMADI,  J. Delay condoned.  Special leave  granted  in both  matters.   The facts leading to these  cases,  briefly stated,  are  that the appellant  Anita  married  respondent Laxmi  Narain on November 1, 1987 at Ghaziabad according  to Hindu  rites.  It is the appellant’s case that on  the  very next day at the Bidai ceremony the relatives of her  husband raised  a  dispute  regarding inadequacy  of  dowry  amount. However,  that  dispute was settled for the  time  being  by respected  persons but Anita was not happy at her  husband’s home  on  account of ill-treatment meted out to her  by  the respondent.  Ultimately on March 11, 1988 she left  for  her father’s  house  in Ghaziabad and since then  she  has  been living there.      The respondent sent a notice through his Advocate dated November  16,  1988 and followed it up by filing  a  Divorce Petition  under Section 13 of the Hindu Marriage Act in  the City  Civil Court at Bombay.  On the appellant being  served with  the notice of the divorce petition she went to  Bombay and entered an appearance and also filed an application  for maintenance  pendente  lite.  Even thereafter  she  attended court  on several adjournments but there was no progress  in the  matter.   On  October  3,  1989  the  proceedings  were

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transferred  to the Family Court at Bandra, Bombay, and  the appellant was informed about the same.  The appellant  filed a  complaint under Section 498A, IPC against the  respondent at  Ghaziabad  on  December 13, 1989.   The  appellant  paid several  visits to Bombay to attend the divorce  proceedings in  the Family Court but the matter was only adjourned  from time to time.  An effort was made by the Marriage Counsellor of  the Family Court to bring about a settlement on May  22, 1990 but in vain.  Tired of making long trips from Ghaziabad to  Bombay  the appellant preferred a Transfer  Petition  in this  Court  for  transferring  the  case  from  Bombay   to Ghaziabad wherein notice was issued and the respondent filed his counter.  The Transfer Petition was ultimately  disposed of  by  this  Court’s order dates January 14,  1991  to  the following effect :           "Since  the matter is pending in the Family  Court          in  which the petitioner herself has also filed  an          application bearing No. 4091/89, We think it  would          be advisable to allow the Family                                                        319           Court to dispose of the matter expeditiously.  The          ends of justice would suffice if we direct that  on          each  occasion  the petitionerwife is  required  to          attend  the  Family Court, the  Family  Court  will          first  insist on the husband depositing the to  and          fro  fare  for the petitioner and a  companion  and          also an amount sufficient for their stay in  Bombay          on  each  visit.  For the next visit to  Bombay  we          direct the husband to deposit a sum of Rs. 2500  in          the  Family Court under notice to  the  petitioner.          We also hope that the Family Court will  appreciate          the  difficulty of the petitioner-wife and  try  to          dispose of the matter and vacate the stay but  with          liberty  to the petitioner-wife to move this  Court          in case of difficulty."      It  was  only  after this order  was  passed  that  the respondent  filed his reply to the  appellant’s  application for  grant of interim maintenance and cost  of  proceedings. As  her first application was not taken up for  hearing  she filed another application for payment of expenses, etc.  The Family   Court   dismissed  her  application   for   interim maintenance  and expenses of proceedings on the ground  that she was gainfully employed.  The only amount allowed by  the Family  Court  was  Rs. 700  towards  second  class  sleeper Railway  fare  for herself and her  companion.   The  Family Court  also  observed  that if she  and  her  companion  are required  to stay in Bombay the respondent will pay Rs.  150 for additional days.  After this order dated April 20,  1991 the appellant was directed to file her statement by May  20, 1991.      Feeling   aggrieved   by  this  order   the   appellant approached  this  Court  seeking  special  leave  to  appeal against  the said order.  She also filed I.A. No. 4 of  1991 in  Transfer  Petition  No. 521/90 in view  of  the  liberty reserved  unto her by this Court’s order dated  January  14, 1991.   In the meantime the divorce proceedings were  listed before  the  Family Court on September 23, 1991 and  as  the appellant  was  held up for attending to her  special  leave petition against the interim order she sought an adjournment by  a letter sent through courier service on  September  21, 1991.  However that being a holiday the Family Court did not hold  its  sitting but took up the matter on the  next  day. Since  the letter written by the appellant had  reached  the Family  Court,  the  Family Court adjourned  the  matter  to October  7, 1991 with a direction to obtain a stay from  the

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Supreme Court or else the matter                                                        320 would proceed.  Intimation about the said order was sent  to the appellant at her old address even though her new address was   communicated  to  the  Family  Court   earlier.    The proceedings  were adjourned from October 7, 1991 to  October 11,  1991  and  thereafter  to  October  19,  1991   without intimation  to the appellant.  The evidence was recorded  on October 19, 1991 and the judgment was pronounced on  October 21, 1991 allowing the divorce petition and granting a decree for  divorce expert.  The appellant has preferred a  special leave  petition against the said order granting  divorce  on the  plea that she had been condemned unheard by the  Family Court  as she could not attend the court on account  of  her inability  to meet the expenses for travel and residence  in Bombay.  These are the circumstances in which the  aforesaid proceedings have arisen before this Court.      From  the facts set out above it is evident  that  this court  did  not order transfer of the case because  it  felt that  the  Family  Court, Bombay, which was  seized  of  the matter would be able to resolve the controversy at an  early date.  This Court had clearly directed that the Family Court will  insist on the husband not only depositing the  to  and from travel expenses for the wife and her companion but also an amount sufficient for their stay in Bombay on each visit. Even  according  to the Family Court the second  class  fare from Bombay Central to Delhi by mail train and from Delhi to Ghaziabad  comes  to Rs. 326 + Rs. 12 i.e. Rs. 338  for  two persons.   The Family Court, therefore, awarded Rs.  700  by way  of  expenses  and  added  that  she  will  be  paid  an additional amount of Rs. 150 per day if she has to stay  for more  than one day.  To say the least, the Family Court  has been far from just to the wife who was required to travel  a long  distance  from Ghaziabad to Bombay Central  to  defend herself.   Nothing  has  been allowed by  way  of  transport charges and lodging and boarding charges even if she has not to  stay  for an additional day in Bombay.  Where  does  the Family Court expect her to put up in Bombay after a 24  hour journey  ?   If the case is adjourned it  seems  the  Family Court  expects her to leave on the same day  post-haste  for Delhi.  Even on reaching Bombay after a tiring journey of 24 hours  she  is  not provided any expense  by  way  of  hotel charges,  lodge  and board, for the day.   Does  the  Family Court expect her to rush to Court from the station and  rush back  to  station from the Court on  the  proceedings  being adjourned  for the day?  Even the meagre payment of Rs.  150 is made available to her if she has to stay in Bombay for an additional  day.  The Family Court, with respect,  also  did not  realise  that it would be impossible to find  a  modest living place for two for Rs. 150 per day in a                                                        321 costly city like Bombay, leave aside the expense for  meals, etc.   It seems to us that the interim order passed  by  the Family  Court  is,  for reasons best  known  to  it,  highly biased.   This  is  more so because it had  before  it  this Court’s order granting Rs. 2500 by way of expenses to  visit Bombay  which provided sufficient guideline for  determining the quantum of expenses to be awarded.  Besides, the  Family Court  has  not awarded any amount to meet the cost  of  the proceedings  on  the  specious plea that  she  is  gainfully employed.    To  say  the  least  the  order  is  far   from satisfactory  and has resulted in gross denial  of  justice. The  order  made  it impossible for the  wife  to  meet  the expenses of frequent visits to Bombay and facilitated an ex- parte divorce decree in favour of the husband.

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    In  the  result we allow the appeal and set  aside  the impugned  order  dated  20th  April,  1991  passed  in  M.J. Petition No. 146 of 1989.  As the said order of 20th  April, 1991 made it impossible for the wife to contest the  divorce petition  in  the Family Court and facilitated  an  ex-parte divorce   decree   in  favour  of  the   husband,   in   the extraordinary  and peculiar circumstances of this  case,  we allow the appeal and set aside the ex-parte divorce decree.      Having  regard to the fact that the husband is  a  high ranking  railway  officer who would be  entitled  to  travel facilities,  we  think in the backdrop of events  that  have taken  place,  it  would be expedient  in  the  interest  of justice  of transfer the proceedings from the Family  Court, Bombay,  to the District Court, Ghaziabad, for  disposal  in accordance  with law, The restored divorce proceedings  will stand  transferred  to the District Court,  Ghaziabad.   The Family Court, Bombay will forthwith transmit the record  and proceedings,  inclusive  of  pending  interim   applications including the one in which the impugned order of 20th April, 1991  came to be passed, to the District  Court,  Ghaziabad, for disposal in accordance with law.  The respondent-husband will pay the cost of the present three proceedings which  we quantify at Rs. 5,000 (Rupees five thousand only). T.N.A.                                        Appeal allowed.                                                        322