DELMA LUBNA COELHOversusEDMOND CLINT FERNANDES

                        [2023] 4 S.C.R. 473                            473


                   DELMA LUBNA COELHO                                  A
                                 v.
                 EDMOND CLINT FERNANDES
              (Transfer Petition (C) No. 1475 of 2021)
                          APRIL 18, 2023                               B
      [RAJESH BINDAL AND ARAVIND KUMAR, JJ.]
      Transfer Petition – Divorce petition was filed by husband
before Family Judge, Mangaluru, Karnataka – Present petition filed
by wife, a permanent resident of Canada, presently based at
                                                                       C
Mumbai, Maharashtra seeking transfer of divorce petition from
Mangaluru, 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 on
a well-paid job, however, came to India for the matrimonial alliance
– As the petitioner is a permanent resident of Canada, she must be     D
travelling abroad regularly – She was in Canada throughout the
mediation process and attended the proceedings online – Both the
parties are well educated and engaged in their own jobs and
professions – Petitioner can travel to Mangaluru to attend the
hearing of the case and can also seek exemption from appearance
                                                                       E
whenever required – No case made out for transfer of the petition
from Karnataka to Maharashtra – Constitution of India – Article
142.
      Matrimonial Cases – Transfer Petitions – Held: Number of
transfer petitions are filed in matrimonial cases, primarily by the
                                                                       F
wives seeking transfer of the matrimonial proceedings initiated by
the husband – Normally, Supreme Court has been accepting the
prayer made while showing leniency towards ladies – However, this
leniency was being misused by women – Hence, each and every
case has to be considered on its own merits.
      R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 :              G
      [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 – relied
      on.                                                              H
                               473
474             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A           Santhini v. Vijaya Venketesh (2018) 1 SCC 1 : [2017]
            12 SCR 557 – referred to.
                               Case Law Reference
      [2019] 12 SCR 873                    distinguished           Para 9
B     [2019] 15 SCR 169                    distinguished           Para 9
      [2017] 12 SCR 557                    referred to             Para 22
            CIVIL ORIGINAL JURISDICTION: Transfer Petition (C) No.
      1475 of 2021.
            Petition under Section 25 and 151 of Code of Civil Procedure
C
      read with Order XXXVI B of the Supreme Court Rules for transfer of
      the 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.
D           Pai Amit, Ms. Pankhuri Bhardwaj, Abhiyudaya Vats, Advs. for
      the Respondent.
            The Judgment of the Court was delivered by
            RAJESH BINDAL, J.

E            1. The present petition has been filed by the petitioner-wife seeking
      transfer of M.C. No. 331 of 2021 titled as “Dr. Edmond Clint Fernandes
      vs. Mrs. Delma Lubna Coelho” pending before the Family Judge at
      Mangaluru, Karnataka to the Family Court at Bandra, Mumbai,
      Maharashtra.

F           2. Learned counsel for the petitioner submitted that the parties
      met on Facebook in the month of December, 2019 and they got married
      on 05.12.2020 as per Christian rites and customs at Our Lady of Miracles
      Church, Mangaluru.
             3. It is pleaded that after the marriage, the petitioner was living
      with the respondent at her matrimonial home at Mangaluru where she
G
      was ill-treated, insulted and humiliated by the respondent and his family
      members. She was accused for each and everything and offensive
      language was used against her. The respondent, in the pretext of giving
      her a break for 10-15 days, booked a one-way ticket for the petitioner
      and sent her to Mumbai on 15.01.2021. Thereafter, he disconnected all
H
 DELMA LUBNA COELHO v. EDMOND CLINT FERNANDES                                    475
              [RAJESH BINDAL, J.]

relations with her. On 05.07.2021, after COVID-19 Pandemic restrictions          A
were eased, the petitioner came back to Mangaluru. However, she was
denied entry in her matrimonial home by the respondent and his family
members. She was completely broken down. She approached the Police
Station at Pandeshwar, Mangaluru and lodged a complaint.
       4. The Superintendent of Police intervened and called respondent          B
to the Police Station. The respondent stated that he has already issued a
divorce notice and his petition seeking divorce is in the process of filing.
Despite repeated requests made by the petitioner, the respondent did not
mend his ways.
      5. On 06.08.2021, she replied to the legal notice stating that she is      C
ready and willing to come to her matrimonial house and wanted to live a
happy married life. On 10.08.2021, she received summons of the Court
along with copy of the divorce petition filed in the Family Court at
Mangaluru.
       6. Learned counsel for the petitioner submitted that she is living        D
with her old aged parents at Mumbai. There is no one at her home to
accompany her from Mumbai to Mangaluru to contest the petition, which
is more than 1,000 km from Mumbai. She does not even know Kannada
language. Whereas the respondent will not face any problem in case the
petition is transferred to Mumbai (Maharashtra). The parties lived together
only for a period of about 40 days. It is stated by the petitioner that if       E
given an opportunity, she would try to re-workout the marriage. The
petitioner was forced to take up job with a bank as the respondent refused
to support her financially. In case, she frequently travels to Mangaluru
to attend the hearings, she is at the risk of losing her job being fresher. It
will not be possible for her to bear the cost as well.                           F
       7. On the other hand, learned counsel for the respondent submitted
that though the parties had met on social media, one year prior to their
marriage, she had even visited to Mangaluru after COVID-19 Pandemic/
restrictions were eased and they met frequently. She was well aware of
the family background of the respondent and also the status of his family.       G
In fact, immediately after the marriage, the behaviour of the petitioner
was not the same as was prior to the marriage. The respondent resides
with his aged parents. He is a doctor by profession. The respondent is
also the founder and CEO of a global health organization involved in
philanthropic activities. Initially petitioner was proud of this but later on
                                                                                 H
476             SUPREME COURT REPORTS                            [2023] 4 S.C.R.


A     the attitude changed. The respondent also paid professional fees for
      engineering grade to ensure petitioner’s financial independence as desired
      by her even prior to their marriage. She now misbehaved with the
      respondent’s parents as she wanted to live a luxurious life. All positive
      points prior to the marriage were now negative.
B            8. In fact, the petitioner being a permanent resident of Canada,
      was habitual of that lifestyle. The marriage was just to spoil the life of
      the respondent though initially, it was claimed that she loves Indian culture
      and traditions. Though it is alleged that the respondent had shunted out
      the petitioner from matrimonial home, however, it was her own decision
      to move out. Immediately, after reaching Mumbai, she applied for a job
C     in ICICI Bank and sent her resignation from the Organization on
      19.02.2021, where she was working with the respondent. She had joined
      the job in the Bank in 05.04.2021. Number of efforts were made by the
      respondent to re-concile the marriage but with no result and the efforts
      in the mediation also failed.
D             9. The respondent was also kept in dark about location of new
      flat worth ` 2,00,00,000/- (Rupees two crores only) purchased by her
      and her family. The respondent came to know about the address when
      she filed a complaint at the Women’s Police Station, on 06.07.2021. As
      a counterblast to the Divorce Petition filed by the respondent, the petitioner
E     has filed petition for restitution of conjugal rights. He further submitted
      that it is a case of irretrievable breakdown of marriage as even during
      repeated mediations, the parties could not reconcile. This Court can grant
      divorce under Article 142 of the Constitution of India without consent of
      the parties. Reliance has been placed upon judgments of this Court in
      R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 and Munish
F     Kakkar 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 of
      the petitioner for transfer of the case, the same are not required to be
      noticed in much detail.
G
           11. At the time of hearing, the petitioner was present in-person
      whereas 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 parties
H     lived together at their matrimonial home only till 15.01.2021.
 DELMA LUBNA COELHO v. EDMOND CLINT FERNANDES                                   477
              [RAJESH BINDAL, J.]

       14. From a perusal of order dated 17.12.2021, it is evident that         A
there being possibility of settlement of the matrimonial dispute, the matter
was referred to Supreme Court Mediation Centre. The Order passed by
this Court on 04.03.2022 records that the efforts of mediation failed.
The respondent sought time to file affidavit for satisfying the Court that
there is an irretrievable breakdown of marriage and this Court should
                                                                                B
exercise its jurisdiction under Article 142 of the Constitution of India to
dissolve the marriage.
       15. Order passed by this Court on 25.03.2022 records that another
effort was required to be made through mediation for resolution of dispute
between the parties. It was referred to Maharashtra State Legal Service
Authority. The Marriage Counsellor was also required to be associated.          C

      16. The order passed by this Court on 02.09.2022 reads as under:
             “It appears that the marriage has not worked from the
      initial period of time itself. The parties got married after
      having met on facebook.                                                   D
           The problem is what the wife demands and what the
      husband says is capable of paying.
            Let both the parties file affidavits alongwith list of
      movable/immovable assets. They should also file their last
      three years’ Income Tax Returns.                                          E
             Two weeks’ time is granted to file necessary affidavits.
             List on 29th September, 2022.
            The parties to either remain present in the Court or
      connect virtually for which the connection will be granted by             F
      the Registry.”
       17. From the order dated 13.10.2022, it is evident that the petitioner
may be working in Canada as she stated that she wound up her work in
Canada and is now living in India. They agreed to take assistance of a
marriage counsellor. Justice S.J. Vazifdar, former Chief Justice of Punjab      G
and Haryana High Court was appointed as a Mediator. The report has
been received from the Mediator stating that despite spending about 50
hours in different sessions, the parties and their family members could
not arrive at a settlement and the mediation failed, as per the report
dated 08.02.2023. It is specifically recorded by the Mediator in his report
                                                                                H
478             SUPREME COURT REPORTS                           [2023] 4 S.C.R.


A     that during four months, several meetings were held with the parties and
      throughout the petitioner was in Canada and she attended the meetings
      through Video Conferencing.
             18. Number of Transfer Petitions are filed in matrimonial cases,
      primarily by the wives seeking transfer of the matrimonial proceedings
B     initiated by the husband. This Court normally has been accepting the
      prayer made while showing leniency towards ladies. In Anindita Das v.
      Srijit Das (2006) 9 SCC 197, this Court observed that may be this
      leniency was being misused by women. Hence, each and every case
      has to be considered on its own merits.
C            19. In the facts of this case in hand, the petitioner is a permanent
      resident of Canada. She had shifted there in the year 2014 and was
      working there on a well-paid job, however, came to India for the
      matrimonial alliance. She is presently based at Mumbai, Maharashtra
      with her parents and stated to be working in ICICI Bank. There is no
      child born out of the wedlock. The relation started after the parties met
D     on Facebook. As far as the respondent is concerned, he is a doctor by
      profession and is living at Mangaluru, Karnataka. Divorce Petition has
      been filed by the husband at Mangaluru where he resides with his aged
      parents. Thereafter, the wife filed a petition for restitution of conjugal
      rights at Mumbai, Maharashtra.
E            20. Considering the status of the parties and the fact that it is a
      petition filed by the wife seeking transfer of case filed by the husband
      from Mangaluru, Karnataka to Mumbai, Maharashtra, in our view no
      case is made out for transfer of the petition from Mangaluru, Karnataka
      to Mumbai, Maharashtra. The wife is a permanent resident of Canada.
F     She must be travelling abroad regularly. As is evident from the observations
      in the Mediation Report dated 08.02.2023 submitted by Justice S.J.
      Vazifdar, the petitioner was in Canada throughout the mediation process
      and attended the proceedings online. There is no child born out of wedlock
      to be taken care of. Both the parties are well educated and engaged in
      their own jobs and professions. She can travel to Mangaluru to attend
G     the hearing of the case and can also seek exemption from appearance
      whenever required. Though, at present, considering the financial condition
      of the parties on the basis of material which has come on record, we do
      not find that any ground is made out for issuing direction to the respondent
      to pay the expenses to the petitioner for travelling to Mangaluru.
H     However, still in case she feels like seeking reimbursement of expenses,
 DELMA LUBNA COELHO v. EDMOND CLINT FERNANDES                                   479
              [RAJESH BINDAL, J.]

she shall be at liberty to file application before the court concerned,         A
which may be examined on its own merits.
        21. We do not find this to be a fit case for exercise of power
under Article 142 of the Constitution of India as good sense may prevail
on the parties. They had lived together only for 40 days. It takes time to
settle down in marriage. The judgments relied upon by the learned counsel       B
for the respondent are distinguishable as in those cases proceedings had
travelled up to this Court after decision by the Courts below in divorce
proceedings, where the parties had led evidence in old matrimonial
dispute. There was sufficient material on record and the ground on which
the marriage was dissolved in exercise of power under Article 142 of
the Constitution of India, was irretrievable breakdown of marriage which        C
otherwise is not a ground in the Hindu Marriage Act,1955 for dissolution
of marriage.
      22. As far as appearance of the parties through video conferencing
is concerned, sufficient guidance has been given by this Court in the
case of Santhini v. Vijaya Venketesh (2018) 1 SCC 1.                            D

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

Divya Pandey                                              Petition dismissed.   E
(Assisted by : Shraddha Singh and Shevali Monga, LCRAs)




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