DELMA LUBNA COELHO versus EDMOND CLINT FERNANDES on 18 April 2023

[2023] 4 S.C.R. 473

DELMA LUBNA COELHO

v.

EDMOND CLINT FERNANDES

(Transfer Petition (C) No. 1475 of 2021)

APRIL 18, 2023

[RAJESH BINDAL AND ARAVIND KUMAR, JJ.]

Transfer Petition – Divorce petition was filed by husbandbefore Family Judge, Mangaluru, Karnataka – Present petition filedby wife, a permanent resident of Canada, presently based atMumbai, Maharashtra seeking transfer of divorce petition fromMangaluru, Karnataka to Family Court at Bandra, Mumbai,Maharashtra – Held: Petitioner is a permanent resident of Canada– She had shifted there in the year 2014 and was working there ona well-paid job, however, came to India for the matrimonial alliance– As the petitioner is a permanent resident of Canada, she must betravelling abroad regularly – She was in Canada throughout themediation process and attended the proceedings online – Both theparties are well educated and engaged in their own jobs andprofessions – Petitioner can travel to Mangaluru to attend thehearing of the case and can also seek exemption from appearancewhenever required – No case made out for transfer of the petitionfrom Karnataka to Maharashtra – Constitution of India – Article142.

Matrimonial Cases – Transfer Petitions – Held: Number oftransfer petitions are filed in matrimonial cases, primarily by thewives seeking transfer of the matrimonial proceedings initiated bythe husband – Normally, Supreme Court has been accepting theprayer made while showing leniency towards ladies – However, thisleniency was being misused by women – Hence, each and everycase has to be considered on its own merits.

R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 :[2019] 12 SCR 873; Munish Kakkar v. Nidhi Kakkar(2020) 14 SCC 657 : [2019] 15 SCR 169 –distinguished.

Anindita Das v. Srijit Das (2006) 9 SCC 197 – reliedon.

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ASanthini v. Vijaya Venketesh (2018) 1 SCC 1 : [2017]12 SCR 557 – referred to.

CIVIL ORIGINAL JURISDICTION: Transfer Petition (C) No.1475 of 2021.

Petition under Section 25 and 151 of Code of Civil ProcedureCread with Order XXXVI B of the Supreme Court Rules for transfer ofthe M.C. No.331 of 2021 of the Hon’ble Family Judge at Mangaluru,Karnataka to the Family Court at Bandra, Mumbai, Maharashtra.

Shankar Divate, Adv. for the Petitioner.

DPai Amit, Ms. Pankhuri Bhardwaj, Abhiyudaya Vats, Advs. forthe Respondent.

The Judgment of the Court was delivered by RAJESH BINDAL, J.

E1. The present petition has been filed by the petitioner-wife seekingtransfer of M.C. No. 331 of 2021 titled as “Dr. Edmond Clint Fernandesvs. Mrs. Delma Lubna Coelho” pending before the Family Judge atMangaluru, Karnataka to the Family Court at Bandra, Mumbai,Maharashtra.

F2. Learned counsel for the petitioner submitted that the partiesmet on Facebook in the month of December, 2019 and they got marriedon 05.12.2020 as per Christian rites and customs at Our Lady of MiraclesChurch, Mangaluru.

3. It is pleaded that after the marriage, the petitioner was livingwith the respondent at her matrimonial home at Mangaluru where sheGwas ill-treated, insulted and humiliated by the respondent and his familymembers. She was accused for each and everything and offensivelanguage was used against her. The respondent, in the pretext of givingher a break for 10-15 days, booked a one-way ticket for the petitionerand sent her to Mumbai on 15.01.2021. Thereafter, he disconnected allH

relations with her. On 05.07.2021, after COVID-19 Pandemic restrictionswere eased, the petitioner came back to Mangaluru. However, she wasdenied entry in her matrimonial home by the respondent and his familymembers. She was completely broken down. She approached the PoliceStation at Pandeshwar, Mangaluru and lodged a complaint.

4. The Superintendent of Police intervened and called respondentto the Police Station. The respondent stated that he has already issued adivorce notice and his petition seeking divorce is in the process of filing.Despite repeated requests made by the petitioner, the respondent did notmend his ways.

5. On 06.08.2021, she replied to the legal notice stating that she isready and willing to come to her matrimonial house and wanted to live ahappy married life. On 10.08.2021, she received summons of the Courtalong with copy of the divorce petition filed in the Family Court atMangaluru.

6. Learned counsel for the petitioner submitted that she is livingwith her old aged parents at Mumbai. There is no one at her home toaccompany her from Mumbai to Mangaluru to contest the petition, whichis more than 1,000 km from Mumbai. She does not even know Kannadalanguage. Whereas the respondent will not face any problem in case thepetition is transferred to Mumbai (Maharashtra). The parties lived togetheronly for a period of about 40 days. It is stated by the petitioner that ifgiven an opportunity, she would try to re-workout the marriage. Thepetitioner was forced to take up job with a bank as the respondent refusedto support her financially. In case, she frequently travels to Mangaluruto attend the hearings, she is at the risk of losing her job being fresher. Itwill not be possible for her to bear the cost as well.

7. On the other hand, learned counsel for the respondent submittedthat though the parties had met on social media, one year prior to theirmarriage, she had even visited to Mangaluru after COVID-19 Pandemic/restrictions were eased and they met frequently. She was well aware ofthe family background of the respondent and also the status of his family.In fact, immediately after the marriage, the behaviour of the petitionerwas not the same as was prior to the marriage. The respondent resideswith his aged parents. He is a doctor by profession. The respondent isalso the founder and CEO of a global health organization involved inphilanthropic activities. Initially petitioner was proud of this but later on A

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Athe attitude changed. The respondent also paid professional fees forengineering grade to ensure petitioner’s financial independence as desiredby her even prior to their marriage. She now misbehaved with therespondent’s parents as she wanted to live a luxurious life. All positivepoints prior to the marriage were now negative.B8. In fact, the petitioner being a permanent resident of Canada,was habitual of that lifestyle. The marriage was just to spoil the life ofthe respondent though initially, it was claimed that she loves Indian cultureand traditions. Though it is alleged that the respondent had shunted outthe petitioner from matrimonial home, however, it was her own decisionto move out. Immediately, after reaching Mumbai, she applied for a jobCin ICICI Bank and sent her resignation from the Organization on19.02.2021, where she was working with the respondent. She had joinedthe job in the Bank in 05.04.2021. Number of efforts were made by therespondent to re-concile the marriage but with no result and the effortsin the mediation also failed.D

9. The respondent was also kept in dark about location of newflat worth ` 2,00,00,000/- (Rupees two crores only) purchased by herand her family. The respondent came to know about the address whenshe filed a complaint at the Women’s Police Station, on 06.07.2021. Asa counterblast to the Divorce Petition filed by the respondent, the petitionerEhas filed petition for restitution of conjugal rights. He further submittedthat it is a case of irretrievable breakdown of marriage as even duringrepeated mediations, the parties could not reconcile. This Court can grantdivorce under Article 142 of the Constitution of India without consent ofthe parties. Reliance has been placed upon judgments of this Court inR. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 and MunishFKakkar v. Nidhi Kakkar (2020) 14 SCC 657.

10. Number of other arguments were also raised on merits,however, for the limited purpose of the consideration on the prayer ofthe petitioner for transfer of the case, the same are not required to benoticed in much detail.G

11. At the time of hearing, the petitioner was present in-personwhereas the respondent had joined through video conferencing.

12. Heard learned counsel for the parties and the parties-in-person.

13. The marriage had taken place on 05.12.2020. The partiesHlived together at their matrimonial home only till 15.01.2021.

14. From a perusal of order dated 17.12.2021, it is evident thatthere being possibility of settlement of the matrimonial dispute, the matterwas referred to Supreme Court Mediation Centre. The Order passed bythis Court on 04.03.2022 records that the efforts of mediation failed.The respondent sought time to file affidavit for satisfying the Court thatthere is an irretrievable breakdown of marriage and this Court shouldexercise its jurisdiction under Article 142 of the Constitution of India todissolve the marriage.

15. Order passed by this Court on 25.03.2022 records that anothereffort was required to be made through mediation for resolution of disputebetween the parties. It was referred to Maharashtra State Legal ServiceAuthority. The Marriage Counsellor was also required to be associated.

16. The order passed by this Court on 02.09.2022 reads as under:

“It appears that the marriage has not worked from theinitial period of time itself. The parties got married afterhaving met on facebook.

The problem is what the wife demands and what thehusband says is capable of paying.

Let both the parties file affidavits alongwith list ofmovable/immovable assets. They should also file their lastthree years’ Income Tax Returns.

Two weeks’ time is granted to file necessary affidavits.

List on 29[th] September, 2022.

The parties to either remain present in the Court orconnect virtually for which the connection will be granted bythe Registry.”

17. From the order dated 13.10.2022, it is evident that the petitionermay be working in Canada as she stated that she wound up her work inCanada and is now living in India. They agreed to take assistance of amarriage counsellor. Justice S.J. Vazifdar, former Chief Justice of Punjaband Haryana High Court was appointed as a Mediator. The report hasbeen received from the Mediator stating that despite spending about 50hours in different sessions, the parties and their family members couldnot arrive at a settlement and the mediation failed, as per the reportdated 08.02.2023. It is specifically recorded by the Mediator in his report AB

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Athat during four months, several meetings were held with the parties andthroughout the petitioner was in Canada and she attended the meetingsthrough Video Conferencing.

18. Number of Transfer Petitions are filed in matrimonial cases,primarily by the wives seeking transfer of the matrimonial proceedingsBinitiated by the husband. This Court normally has been accepting theprayer made while showing leniency towards ladies. In Anindita Das v.Srijit Das (2006) 9 SCC 197, this Court observed that may be thisleniency was being misused by women. Hence, each and every casehas to be considered on its own merits.

C19. In the facts of this case in hand, the petitioner is a permanentresident of Canada. She had shifted there in the year 2014 and wasworking there on a well-paid job, however, came to India for thematrimonial alliance. She is presently based at Mumbai, Maharashtrawith her parents and stated to be working in ICICI Bank. There is nochild born out of the wedlock. The relation started after the parties metDon Facebook. As far as the respondent is concerned, he is a doctor byprofession and is living at Mangaluru, Karnataka. Divorce Petition hasbeen filed by the husband at Mangaluru where he resides with his agedparents. Thereafter, the wife filed a petition for restitution of conjugalrights at Mumbai, Maharashtra.

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20. Considering the status of the parties and the fact that it is apetition filed by the wife seeking transfer of case filed by the husbandfrom Mangaluru, Karnataka to Mumbai, Maharashtra, in our view nocase is made out for transfer of the petition from Mangaluru, Karnatakato Mumbai, Maharashtra. The wife is a permanent resident of Canada.FShe must be travelling abroad regularly. As is evident from the observationsin the Mediation Report dated 08.02.2023 submitted by Justice S.J.Vazifdar, the petitioner was in Canada throughout the mediation processand attended the proceedings online. There is no child born out of wedlockto be taken care of. Both the parties are well educated and engaged intheir own jobs and professions. She can travel to Mangaluru to attendGthe hearing of the case and can also seek exemption from appearancewhenever required. Though, at present, considering the financial conditionof the parties on the basis of material which has come on record, we donot find that any ground is made out for issuing direction to the respondentto pay the expenses to the petitioner for travelling to Mangaluru.HHowever, still in case she feels like seeking reimbursement of expenses, she shall be at liberty to file application before the court concerned,which may be examined on its own merits.

21. We do not find this to be a fit case for exercise of powerunder Article 142 of the Constitution of India as good sense may prevailon the parties. They had lived together only for 40 days. It takes time tosettle down in marriage. The judgments relied upon by the learned counselfor the respondent are distinguishable as in those cases proceedings hadtravelled up to this Court after decision by the Courts below in divorceproceedings, where the parties had led evidence in old matrimonialdispute. There was sufficient material on record and the ground on whichthe marriage was dissolved in exercise of power under Article 142 ofthe Constitution of India, was irretrievable breakdown of marriage whichotherwise is not a ground in the Hindu Marriage Act,1955 for dissolutionof marriage.

22. As far as appearance of the parties through video conferencingis concerned, sufficient guidance has been given by this Court in thecase of Santhini v. Vijaya Venketesh (2018) 1 SCC 1.

23. For the reasons mentioned above, we do not find any merit inthe present petition. The same is accordingly dismissed.

Divya Pandey

Petition dismissed.

(Assisted by : Shraddha Singh and Shevali Monga, LCRAs)

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