Jitesh Tolani @ Manmeet Laghmani Vs. Jitesh Kishore Tolani  INSC 328 (28
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION TRANSFER PETITION
(CIVIL) NO.1127 OF 2008 Vinisha Jitesh Tolani @ Manmeet Laghmani ..Petitioner
Jitesh Kishore Tolani ..Respondent WITH TRANSFER PETITION (CRL.) No.74 of 2009
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 2 Division, at Vasco-da-Gama, Goa, to a Court of
competent jurisdiction in Delhi.
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.
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 3 to United Kingdom where her parents had been given British
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.
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.
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 4 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.
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 5 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, 6 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.
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.
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 7 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.
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 8 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.
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 9 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 1 until amended or repealed by the competent Legislature or other
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
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."
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.
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 1 not have any application in the State of
Goa since the same had not been extended to the State of Goa.
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.
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 &
(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.
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 1 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.
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.
words, even if it were to be held that it 1 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 1 allowing the prayer
of the petitioner.
accordingly, allow the Transfer Petition (Civil) No.1127 of 2008 and direct
that Matrimonial Petition No.9/2008/A titled Jitesh Kishore Tolani 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.
Transfer Petition (Crl.) No.74 of 2009 filed by the husband is, therefore,
................................................J. (ALTAMAS KABIR)
Dated: 28th April, 2010.
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.
Petitioner(s) Mr. S.K. Sharma,Adv.
Respondent(s) Ms. Suruchii Aggarwal,Adv.
Mr. Justice Altamas Kabir pronounced the Judgment of the Bench comprising His
Lordship, and Hon'ble Mr. Justice Cyriac Joseph.
Transfer Petition ) No. 1127 of 2008 is allowed.
Transfer Petition (Crl.) No. 74 of 2009 is dismissed.
Thakur) (Juginder Kaur) PS to Registrar Court Master Signed reportable judgment
is placed on the file.