REPORTABLE 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  

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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  

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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  

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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  

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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,  

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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  

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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  

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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.”   

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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 &  

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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  

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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  

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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  

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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.

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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) PS to Registrar

(Juginder Kaur) Court Master

Signed reportable judgment is placed on the file.

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