Delma Lubna Coelho vs Edmond Clint Fernandes

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (C) NO. 1475 OF 2021

DELMA LUBNA COELHO …PETITIONER

Versus

EDMOND CLINT FERNANDES …RESPONDENT

JUDGMENT

Rajesh Bindal, J.

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.

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 Signature Not Verified

rites and customs at Our Lady of Miracles Church, Digitally signed by Anita Malhotra Date: 2023.04.18 17:31:03 IST Reason:

Mangaluru.

Page 1 of 12 Transfer Petition (C) No.1475 of 2021

3. It is pleaded that after the marriage, the petitioner

was living with the respondent at her matrimonial home at

Mangaluru where she was ill­treated, 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 10­15 days, booked a one­way ticket

for the petitioner and sent her to Mumbai on 15.01.2021.

Thereafter, he disconnected all relations with her. On

05.07.2021, after COVID­19 Pandemic restrictions 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 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.

Page 2 of 12 Transfer Petition (C) No.1475 of 2021

5. On 06.08.2021, she replied to the legal notice

stating that she is 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 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 given an opportunity, she

would try to re­workout 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.

Page 3 of 12 Transfer Petition (C) No.1475 of 2021

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 COVID­19 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. 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 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.

Page 4 of 12 Transfer Petition (C) No.1475 of 2021

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 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 re­concile the marriage but with no result

and the efforts in the mediation also failed.

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 has filed petition for restitution of

conjugal rights. He further submitted that it is a case of

Page 5 of 12 Transfer Petition (C) No.1475 of 2021

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 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.

11. At the time of hearing, the petitioner was present

in­person whereas the respondent had joined through video

conferencing.

12. Heard learned counsel for the parties and the

parties­in­person.

13. The marriage had taken place on 05.12.2020.

The parties lived together at their matrimonial home only till

15.01.2021.

Page 6 of 12 Transfer Petition (C) No.1475 of 2021

14. From a perusal of order dated 17.12.2021, it is

evident that 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 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.

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.

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

Page 7 of 12 Transfer Petition (C) No.1475 of 2021

Let both the parties file affidavits alongwith list of movable/immovable assets. They should also file their last three years’ Income Tax Returns.

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 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 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 that during four months, several

meetings were held with the parties and throughout the Page 8 of 12 Transfer Petition (C) No.1475 of 2021

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 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.

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 well­paid 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 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 Page 9 of 12 Transfer Petition (C) No.1475 of 2021

parents. Thereafter, the wife filed a petition for restitution of

conjugal rights at Mumbai, Maharashtra.

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. 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 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

Page 10 of 12 Transfer Petition (C) No.1475 of 2021

expenses to the petitioner for travelling to Mangaluru.

However, 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

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 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 otherwise is not a ground in the Hindu

Marriage Act,1955 for dissolution of marriage.

Page 11 of 12 Transfer Petition (C) No.1475 of 2021

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.

23. For the reasons mentioned above, we do not find

any merit in the present petition. The same is accordingly

dismissed.

…….……………J. [Rajesh Bindal]

…….……………J. [Aravind Kumar] New Delhi 18.04.2023

Page 12 of 12