Divorce transfer at sc by wife

Worker

 

Civil Procedure Code 1908

ORDER VI

PLEADINGS GENERALLY

17. Amendment of pleadings

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

1. Rules 17and 18 which were omitted by Act No. 46 of 1999, section 16.

2. Subs. by Act 22 of 2002, sec. 7 for rules 17 and 18 [as they stood immediately before their omission by clause (iii) of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2000).

18. Failure to amend after order.

If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

 

application should mention –

1) Court details                                                       

2) Title of the case  

3) Memo of parties

4) Pleadings which are sought to be amended                                            

5) Reasoning

6) Prayer clause to allow amendment the same                                          

7) Prayer

 

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Amendment

 

Rajesh Kumar Aggarwal vs. K.K. Modi  [(2006) 4 SCC 385

The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

·         Similar  views were also expressed in Andhra Bank vs. ABN  Amro Bank N.V. [(2007) 6 SCC 167].

·         AIR 2002 SUPREME COURT 1003 "Gurdial Singh v. Raj Kumar Aneja"

SUPREME  Court in Harcharan vs. State of Haryana [(1982) 3  SCC 408], where it was observed that amendment of  pleadings relating to the main controversy should  not be refused on mere technical grounds

 

IN REVAJEETU BUILDERS CASE BEFORE SUPREME COURT DECIDED IN OCTOBER 2009 THE FOLLOWING PRINCIPLES WERE QUOTED IN THE MATTER OF AMENDMENT OF PLEADINGS

On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

 

There was no  bar to the Appellate Court permitting amendment of pleadings to enable a party to raise a new plea, as  was held by SUPREME Court in Pandit Ishwardas vs.  State of M.P. [(1979) 4 SCC 163]. In fact, SUPREME  Court observed that all that was necessary was that  the Appellate Court should observe the well-known  principles subject to which amendments of pleadings  are usually granted. Naturally, one of the  circumstances which would be taken into consideration before an amendment was granted is  the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the Trial Court. 

 

1.      The Hon’ble Supreme court of India in Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] has held that “It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.

2.      The Hon’ble Supreme court of India in  Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. Decided on 14/5/2008 and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp  “ It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”

3.      The Hon’ble Supreme court of India in Chander Kanta Bansal vs  Rajinder Singh Anand Decided on: 11/03/2008 and Judgement can be seen in  http://judis.nic.in/supremecourt/chejudis.asp It is observed by court as follows “ It makes it clear that  after the commencement of trial, no application for  amendment shall be allowed.  However, if it is established that  in spite of "due diligence" the party could not have raised the  matter before the commencement of trial depending on the  circumstances, the court is free to order such application.  The  words "due diligence" has not been defined in the Code.   According to Oxford Dictionary (Edition 2006), the word  "diligence" means careful and persistent application or effort.   "Diligent" means careful and steady in application to one's  work and duties, showing care and effort.  As per Black's Law  Dictionary (Eighth Edition), "diligence" means a continual effort  to accomplish something, care; caution; the attention and care  required from a person in a given situation.  "Due diligence"  means the diligence reasonably expected from, and ordinarily  exercised by, a person who seeks to satisfy a legal requirement  or to discharge an obligation.  According to Words and Phrases  by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in  law, means doing everything reasonable, not everything  possible.  "Due diligence" means reasonable diligence; it means  such diligence as a prudent man would exercise in the  conduct of his own affairs. It is clear that unless the party  takes prompt steps, mere action cannot be accepted and file a  petition after the commencement of trial.”

4.      The Hon’ble Supreme court of India in N.Pandey & Anr.  Vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1].  and Judgement can be seen in  http://judis.nic.in/supremecourt/chejudis.asp In paragraph 57 of the decision, it was observed as follows :”It is submitted that the date of settlement of issues is the date of commencement of trial.”

5.      The Hon’ble Supreme court of India in Baldev Singh & Ors. Vs.  Manohar Singh & Anr. [2006 (6) SCC 498]. and Judgement can be seen in  http://judis.nic.in/supremecourt/chejudis.asp In paragraph 17 of the decision, it was held and observed as follows : “Before we part with this order, we may also  notice that proviso to Order 6 Rule 17 CPC  provides that amendment of pleadings shall not be  allowed when the trial of the suit has already  commenced.

6.      The Hon’ble Supreme court of India in South Konkan Distilleries & Anr.   Vs Prabhakar Gajanan Naik & Ors.[Decided on 09-09-2008]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp it was held and observed as follows : “we are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and    the   counter      claim,   in   the    facts   and circumstances of the case, could not arise at all. Accordingly, the courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim.” 

 


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It will not be possible to fight the divorce in her home turf.  The divorce case is filed by husband on cruelty ground in other state so travelling, life threat, witness, lot of problems are involved here.

MCD also not possible as their demands are high.

The question here is, If SC had ordered in her favor for transfer then what are the other option left to the husband for divorce?

 
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Worker

Transfer Petitions are decided on merits.

You should have contested her TP in SC.

The mere fact that - u have filed petition - does not mean that the case should be tried as per your convenience.

The case is already transferred by SC.

Now u have no remedy left.

 

PS : Using large font size suggests - U r shouting !!

 
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That is the fate of 498a husband. except shouting wat else can be done.

my intention is to draw the attention of experts on moot point.

 
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Worker

moot pt.

u have filed petition for divorce.

now try to prove that the grounds specified in the petition are valid and u r entitled to get divorce decree.

no help of withdrawing and filing fresh petition.

fresh petition will also be transferred by wife.

u should have contested her TP in SC.


i fail to understand - exactly what kind of reply u r expecting.

or its just - u dont want to hear any unpleasent reply !!


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Senior Partner

 

Originally posted by :cm jain sir
" That is the fate of 498a husband. except shouting wat else can be done.
my intention is to draw the attention of experts on moot point.
"

@ Author

1.
Too late to shout now. Experts noticed the mute point well in your first enquiry and now there is nothign else to note except un-finished gyan to cover - up the next time. Would have been better if ‘pressed” before Bench then and there instead of walking out in flat 1 minute. Reasoning: Before SC any TP(c ) does not stand more than 1 minute test under family law.

 

Strategy and facts to remember to fight Transfer Petitions

Normally, Husband or wife can put transfer petition to transfer the petition from the place where it is initiated to the place of convenience.


If the source place and the destination place are in the same state then transfer petition has to be put in the high court of the same state.


If the source place and the destination place are in the different state then transfer petition has to be put in the Supreme Court.


Typical grounds taken by wife in the transfer petitions are below.

Point 1     - Having a child
Point 2     - Travel is unsafe being a lady
Point 3     - Expenses required for travel
Point 4     - Threat to life at Husband’s place
Point 5     - Husband is very influential in his place
Point 6     - Inconvenience to travel long distance



Counters for the above 6 most common hydraulic powers of metro wives !.



COUNTER OF POINT 1
: One of the parents of the wife can look after the child and another can accompany her. Some of the precedence where this court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 27 OF 2005)


COUNTER OF POINT 2
:
Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. Supreme court also accepted this fact recently while disposing the "TP (CIVIL) NOS.117-118 OF 2004" while passing the following order.

"The grounds made out are that the Petitioner is an unemployed lady and totally dependent on her uncle and that she will be hard pressed to defend the Suit at Muzaffar Nagar. It is also claimed that there is a Petition for restitution of conjugal rights and certain other proceedings pending in
Delhi. In our view, no substantial ground for transfer has been made out. If the Petitioner wishes that all cases be tried at one place, she may apply for the same and we will transfer the cases pending in Delhi to Muzaffar Nagar. Merely because the Petitioner is a lady does not mean she cannot travel to Muzaffar Nagar. At the highest she can be paid expenses for travel and stay. We, therefore, direct that the Respondent shall pay to the Respondent and a companion travel and stay expenses on every occasion that the Petitioner is required to go to Muzaffar Nagar. The Court at Muzaffar Nagar shall ensure that such payment is made to the Petitioner on every occasion. With these directions, the Transfer Petitions are dismissed."



Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. The respondent wants to bring to the kind attention of the honorable court that in general ladies are misusing the leniency shown by this honorable court in regard to the transfer petition. Supreme court also accepted this fact recently while disposing the "TP (CIVIL) NO.191 OF 2005" while passing the following order.


"Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency taken by this Court. On an average at least 10 to 15 transfer petitions are on Board of each Court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grand parents available to look after the child. The Respondent is willing to pay all expenses for travel and stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at
Delhi. Thus, the ground that the Petitioner has no source of income is adequately met. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can always apply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out. Accordingly, we dismiss the Transfer Petition. We, however, direct that the Respondent shall pay all travel and stay expenses of the Petitioner and her companion for each and every occasion when she is required to attend the Court at Delhi".


COUNTER OF POINT 3
: Ready to pay all expenses but mention that this will be paid on actual. Husband is willing to pay reasonable expenses to wife whenever she is required to travel for these cases. Some of the precedence where Supreme Court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP(C) No. 24/2005, TP (CIVIL) NO. 27 OF 2005, TP(C) No. 61/2005, TP (Civil) No.66 of 2003, TP (Civil) No.136 of 2003, TP (CIVIL.) NO(s). 212 OF 2006, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 OF 2004, TP NO..416 OF 2004, T.P.(C) No. 489 OF 2004, TP (CIVIL.) NO(s). 561 OF 2004, TP (CIVIL.) NO(s). 191 OF 2005, TP(C) NO.195 OF 2005, TP (CIVIL) NO.243 OF 2005, TP (CIVIL.) NO(s). 245 OF 2005, TP(C) NO.246 OF 2005, TP (CIVIL.) NO(s). 302 OF 2005, TP NO.393 OF 2005, TP (C) NO. 414/2005, TP (CIVIL) NO.459 OF 2005, TP (C) NO. 564 OF 2005, TP (C) NO. 686 OF 2005, TP (CIVIL.) NO(s). 698 OF 2005, TP (CIVIL.) NO(s). 722 OF 2005, TP (CIVIL) NO.725 OF 2005, TP (CIVIL.) NO(s). 741 OF 2005, TP (CIVIL.) NO(s). 743 OF 2005, TP (CIVIL.) NO(s). 746 OF 2005, TP (CIVIL.) NO(s). 759 OF 2005, TP (CIVIL.) NO(s). 769 OF 2005, TP (C) NO. 798 OF 2005),.


COUNTER OF POINT 4
: You have to mention that you too face a threat at her place. You need to argue that in that case it should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case you have to give her travel and staying expenses. But this should be a last ditch effort. You should not mention this point of neutral place in the petition. In case your lawyer feel that judge may transfer the petition then only this method should be used.


COUNTER OF POINT 5
: You have to mention that wife’s family is also influential in their place. You need to argue that in that case it should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case you have to give her travel and staying expenses. But this should be a last ditch effort. You should not mention this point of neutral place in the petition. In case your lawyer feel that judge may transfer the petition then only this method should be used.


COUNTER OF POINT 6
: The distance between place A and B is not so far that it will cause inconvenience to wife. Some of the precedence where this court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP (C) No. 61/2005, TP (Civil) No.66 of 2003, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 of 2004).  

"Winning or loosing the case is not in our hand but fighting the case tooth and nail is in our hand"


 

A live illustration J

 

ITEM NO.19 COURT NO.6 SECTION XVIA

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.1268 OF 2009
(For Prel. Hearing)

INES MIRANDA - Petitioner(s)

VERSUS

SANTOSH K SWAMY - Respondent(s)

(With appln(s) for ex-parte stay)

Date: 14/12/2009 This Petition was called on for hearing today.

CORAM :
HON'BLE MR. JUSTICE DALVEER BHANDARI
HON'BLE MR. JUSTICE A.K. PATNAIK

For Petitioner(s) Mr. S. Gurukrishna Kumar,Adv.

Mr. S.R. Setia,Adv.

For Respondent(s)

UPON hearing counsel the Court made the following

O R D E R

The petitioner is seeking transfer of the case from Chennai to
Bangalore. Her contention is that it is inconvenient for her to look after the case at Chennai because she is working in Bangalore and has a small child. Learned counsel appearing on behalf of the petitioner submits that it would not be inconvenient for the respondent-husband to prosecute the case in Bangalore as he is unemployed.

The petitioner is directed to pay Rupees ten thousand as traveling expenses to the respondent since he is unemployed. Upon deposit of this amount, notice would be issued and the proceeding before the Trial Court shall be stayed.

 

[ Alka Dudeja ] [ Neeru Bala Vij ]
Court Master    Court Master

 

 


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Fighter

"The petitioner is directed to pay Rupees ten thousand as traveling expenses to the respondent since he is unemployed. Upon deposit of this amount, notice would be issued and the proceeding before the Trial Court shall be stayed."
 
Thank you for this Fantastic illustration Sirjee!!!

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Thanks a lot Tajob sir! Great help!

Thanks Amit, and other experts

 
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Worker

Best of luck cm jain sir.


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Yes.it is possible to withdraw the petition filled by you & transferred to her place by SC.

You can file fresh divorce petition at your place & make her again approach SC for transfer & shell out money for that.

It is advisable if are fighting your case in-person, as you will also have to shell out money for the process & if do not mind delay in proceedings.


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