Dismissal Of Transfer Petition May Not Operate As Res Judicata If Fresh Petition Is Filed On Change Of Circumstances: Supreme Court

The Supreme Court held that a dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances.

In this case, a woman approached the Apex Court, for the second time, seeking the transfer of a 'Family Suit' filed by her husband [under Section 9 of the Hindu Marriage Act, for restitution of conjugal rights] from the Family Court in Gujarat, to a court in Mumbai, Maharashtra. Earlier in 2016, the same prayer was dismissed by the Court. After three years of the dismissal of the said Transfer Petition, the petitioner has come up with the present Transfer Petition on the ground that there are change of circumstances 1) death of her mother 2)  Family Court's dismissal of application to direct her husband to to provide the expenditure for her travel. Opposing this plea, the 'husband' contended that once a request for transfer got rejected on an earlier occasion, a second petition cannot be maintained.

Regarding maintainability, Justice V. Ramasubramanian agreed with the petitioner that the earlier dismissal of a petition for transfer, may not operate as res judicata. It S

But as rightly contended by the learned counsel for the petitioner, the dismissal of a petition for transfer, may not operate as res judicata, when a fresh petition is filed on change of circumstances. The first transfer petition in T.P.(C)No.615 of 2016 was dismissed in limine without even a notice being ordered to the respondent. Therefore, the present petition for transfer cannot be opposed solely on the ground that the earlier petition was dismissed. But at the same time, the petitioner will have to satisfy the court that there are change of circumstances and that there are sufficient grounds made out.

The court, however, took note of the stage of proceedings before the Family Court and said that when a case is at its final stage, the Court will be extremely reluctant to order the transfer, as it may derail the entire process. Though it rejected the prayer to Transfer the case, the court issued following directives:

-The petitioner is permitted to move an application for reopening of her evidence before the family Court. The application may be allowed to be filed on line if such a facility is available. Else, it may be permitted to be filed through counsel without the petitioner having to undertake a travel. The Family Court may take a lenient view on the said application and have the evidence on the side of the petitioner restored. Thereafter the case may be posted for the cross examination of the petitioner. For facilitating the cross examination of the petitioner by the counsel for the respondent husband, the Court may be granted a firm date. On the date so fixed, the petitioner shall appear before the Family Court. The respondent shall ensure that the cross examination of the petitioner is carried out without fail by the counsel for the respondent. No request for any adjournment on behalf of the respondent shall be allowed;

-On all occasions except the date on which the petitioner is to be cross examined, the petitioner may be permitted by the Family Court to be represented by a counsel without being present. If Video Conferencing facility is available, the petitioner may be granted the said facility;

-On every occasion when the family Court wants the physical presence of the petitioner, the respondent shall pay a sum of Rs.10,000/­ to the petitioner, towards expenses for travel and stay. If the respondent fails to pay, the petitioner will be at liberty to approach this court.

CASE: AMRUTA BEN HIMANSHU KUMAR SHAH vs HIMANSHU KUMAR PRAVINCHANDRA SHAH

CORAM: Justice V. Ramasubramanian

COUNSEL: Adv Harsh Desai, Adv Ranu Purohit

CITATION: LL 2021 SC 49

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