Vinisha Jitesh Tolani @ Manmeet Laghmani vs Jitesh Kishore Tolani

of 2008 pending before the Civil Judge, Senior 2

Division, at Vasco-da-Gama, Goa, to a Court of

competent jurisdiction in Delhi.

2. The 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.

3. The 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 Nationality.

4. While 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.

5. It 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.

However, 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.

6. 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.

7. 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.

However, 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.

8. Mr. 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.

9. Ms. 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 competent authority.

(2) For 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 so made."

10. Ms. 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."

1 11. 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.

Ms. 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.

It was 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.

12. We 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 & 1 Diu (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.

13. As 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.

In other 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.

In other 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.

15. We, accordingly, allow the Transfer Petition

(Civil) No.1127 of 2008 and direct that Matrimonial

Petition No.9/2008/A titled Jitesh Kishore Tolani

Vs. Vinisha Jitesh Tolani @ Manmeet Laghmani

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.

16. Transfer Petition (Crl.) No.74 of 2009 filed

by the husband is, therefore, dismissed.

................................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated: 28th April, 2010.

1

ITEM 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.

For Petitioner(s) Mr. S.K. Sharma,Adv.

Mr. Dhruv Kumra,Adv.

Mr. Sanjay Jain,Adv.

For Respondent(s) Ms. Suruchii Aggarwal,Adv.

Hon'ble Mr. Justice Altamas Kabir pronounced the Judgment of the Bench comprising His Lordship, and Hon'ble Mr. Justice Cyriac Joseph.

The Transfer Petition ) No. 1127 of 2008 is allowed.

The Transfer Petition (Crl.) No. 74 of 2009 is dismissed.

(Ganga Thakur) (Juginder Kaur) PS to Registrar Court Master

Signed reportable judgment is placed on the file. 1