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Vishnu Kushwaha (Quality)     14 June 2015

What is status of current case if transfer case is filed

Hi

Please Advise. What will happen to my current divorce case in a local court at Mumbai as she (the respondent) has filed for a Transfer of the case to Chandigarh recently i.e. on 18 May (came to know through the supreme court website). 

The current status of the case is that, mediation / counselling is over and the case has been sent back to the court by the Lok Adalat, as she has not appeared in any of the hearings till now (except one) and has not even filed a counter to the divorce case filed by me. Court has given her the last chance to file a counter and appear in front of the court by 05 Aug. I have good and strong evidences.

My advocate says that we can get an ex parte within a month if se doesn't appear or files a counter by 05 Aug.

My question is that if she has already filed for a Transfer case then does it automatically put my case in Mumbai on a stay and how? If not then how much time will it take for her to get a stay on the case in Mumbai? And if the stay doesn't come, then can the divorce be granted to me in a month's time from 05 Aug onwards, and would IT BE IT?

Please suggest.



Learning

 11 Replies

Dr J C Vashista (Advocate)     14 June 2015

The case will be heard at Chandigarh and no further proceedings in Mumbai. The transfree court (Chandigarh) shall issue court notice to both parties for appearnce on a date fixed for further proceeding.

Vishnu Kushwaha (Quality)     14 June 2015

Oh no Dr vashista! That will only happen once the case has successfully been transferred to Chandigarh. this I know. But. What I was asking here is, What about the dates(hearings) that will be their in Mumbai Till the time case is finally transferred to Chandigarh.

chakraverthy venkata venugopal   15 June 2015

I agreed with the consent of Respected Dr.J.C.Vashistaji

Dr J C Vashista (Advocate)     15 June 2015

Dear Vishnu Kushwaha,

If the case has been taken up by Hon'ble Supreme Court, the proceedings of the case is being stayed and intimated to the parties.

Subsequently Mumbai courts can/shall not proceed till final decision, which generally goes in favour of wife.  

Biswanath Roy (Advocate)     15 June 2015

Normally information of filing the subject transfer of jurisdiction case will be communicated to the opposite party by the Advocate-on-record of the SUPREME COURT who is acting on behalf of the petitioner when all furthur proceedings of the court below shall automatically will be stayed.

N R Dash.. (Advocate)     16 June 2015

A Transfer Petition in SC is always acompanied with an IA for stay of the proceedings in the current court. The IA is disposed prior to the main TP. If the SC bench is satisfied, they order a stay in the further proceeding and direct the current court accoringly. Hence, if such order is passed and received at the Mumbai Court, your case will be adjourned to subsequent dates till final TP order is delivered.

 

Now, if these is no IA filed and no order for stay of hearing received from SC, do ask your advocate to push forward and pitch for ex-parte hearing so that your can get the caase disposed at the present court only. Else, if good grounds shown by your wife, the petition would be transfered to chandigarh and you will have to fight the case at chandigarh which would undoubtedly a big challenge for you.

Biswanath Roy (Advocate)     16 June 2015

I am sorry to MODIFY the views of Learned Mr. N. R. Dash to some extent.  The Author's query is ' that if she has already filed a transfer case then does it automatically put my case in Mumbai on a stay and how?'  The reply should be IF THE INFORMATION OF FILING THE TRANSFER CASE IN SUPREME COURT COMES TO THE KNOWLEDGE OF THE MUMBAI COURT AUTO MATICALLY ALL FURTHER PROCEEDING SHALL BE STAYED. Because, Mumbai Court being a subordinate Court cannot interfere with due course of Justice even cannot tend to interfere with due course of Justice.

N R Dash.. (Advocate)     16 June 2015

Filing of a petition in a higher court ralating to any petition in the lower court does not automatically put a stay on the proceeding of the original petition until unless challenged and requested vide an IA. The lower court shall follow the directions of the higher courts. It is not presumed that a wife would always get a favourable order if she files a petition in any Higher Court. Until the order is passed vida the IA or the TP, the lower court can not put a stay on the proceeding. 

 

Agree with Adv. Roy to some extent, the other side of the coin says, if the OP advocate presents the fact of filing TP in SC and requests adjournment, the Judge using his discretionary power may adjourn to subsequent dates. There is no laid down rules for doing so, but the discretion of the Judge.

Biswanath Roy (Advocate)     16 June 2015

If any matter is pending before the Superior Court, the matter is subjudiced to that court, subordinate court has no legal competence to try, hear and determine subjudiced matter pending before superior court which will cause interferance with due course of justice and that will tantamount to CONTEMPT.

N R Dash.. (Advocate)     16 June 2015

@Adv. Roy there is no laid down rule for that. As I stated, its the discreton only provided the matter is brought into notice of the court and presented properly. 

 

In this case its just a TP, not challenging the facts and fictions of the original petition.

Biswanath Roy (Advocate)     16 June 2015

As the application has been filed in the Supreme Court such position constitutes and mean the matter  " IS BEING TRIED " and hence, any interference to that shall further constitute and mean "INTERFERENCE WITH DUE COURSE OF JUSTICE"  Due course of Justice means not only any particular proceedings but broad stream of administration of justice. T he words due course of justice  used in sec.13 of the Contempt of Courts Act,1971 are worthy of note and they contrast with the words used in sec.2(c) due course of any" judicial proceeding" or "administration of justice".  The words "due course of justice" used in sec.13 of the Contempt of Courts Act are of wide import and are not limited to any particular judicial proceeding. If the act complained of substantially interferes or tends to interfere with the broad stream of administration of justice, that is punishable under sec 13 of the Contempt of Courts Act, 1971.


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