Tag: #judicialpowers

-Report by Nehha Mishra

In the case of DELMA LUBNA COELHO VS EDMOND CLINT FERNANDES, the petitioner filed the petition seeking the transfer of the pending case before the family judge at Mangaluru, Karnataka to the family court at Bandra, Mumbai, Maharashtra.

FACTS

The couple met on Facebook in December 2019 and married on December 5, 2020, according to Christian rites and customs at Our Lady of Miracles Church in Mangaluru. Following the marriage, the petitioner lived with the respondent in her matrimonial house in Mangaluru, where she was abused, insulted, and humiliated by the respondent and his family members.

She was accused of everything, and foul language was used against her. Under the guise of providing her with a 10-­15­day break, the respondent booked a one-way ticket for the petitioner and despatched her to Mumbai on January 15, 2021.

After COVID­19 Pandemic limitations were lifted on July 5, 2021, the petitioner returned to Mangaluru. The defendant and his family members, however, refused her admission into her matrimonial house. She was completely distraught. She went to the Pandeshwar Police Station in Mangaluru and filed a complaint. 

The Superintendent of Police intervened and summoned the respondent to the Police Station. The respondent replied that he has already served a divorce notice and that his divorce petition is being prepared.  Despite the petitioner’s repeated appeals, the respondent did not change his behaviour. On 06.08.2021, she responded to the legal notice, claiming that she is ready and eager to come to her matrimonial home and want to live a happily married life. On October 10, 2021, she received a summons from the Court, along with a copy of the divorce petition filed in the Mangaluru Family Court. 

PETITIONER’S CONTENTION

The petitioner’s learned counsel stated that she lives in Mumbai with her elderly parents. No one at her home can accompany her from Mumbai to Mangaluru to defend the petition, which is over 1,000 km away. She doesn’t even know the Kannada language.  The respondent, on the other hand, will experience no difficulties if the petition is relocated to Mumbai (Maharashtra).

The petitioner claims that if given the chance, she would try to rework the marriage. The petitioner was obliged to obtain a job with a bank because the respondent failed to financially support her. If she routinely travels to Mangaluru to attend the proceedings, she risks losing her job as a newbie. She will be unable to bear the additional expenditure.

The petitioner has filed a petition for restitution of marital rights in response to the respondent’s Divorce Petition. 

RESPONDENT’S CONTENTION

On the other hand, experienced counsel for the respondent contended that, even though the parties met on social media, one year before their marriage, she had visited Mangaluru after the COVID19 Pandemic/restrictions were removed and they met often.  

She was well aware of the respondent’s familial background as well as the condition of his family. The petitioner’s behaviour was not the same after the marriage as it was before the marriage.

The petitioner, a permanent resident of Canada, was accustomed to such a way of life. The marriage was just intended to ruin the respondent’s life, even though she first claimed to love Indian culture and traditions. Though it is claimed that the respondent forced the petitioner to leave the matrimonial home, the petitioner chose to leave on her own.   She applied for a job with ICICI Bank immediately after arriving in Mumbai and resigned from the organizationon February 19, 2021, where she was working with the respondent.

The marriage was irretrievably broken since the parties could not reconcile despite several mediations. Without the parties’ consent, this Court may issue divorce under Article 142 of the Indian Constitution.

JUDGEMENT

In marriage disputes, several Transfer Petitions are filed, typically by wives requesting transfer of the matrimonial procedures launched by the husband. Normally, the court accepts the prayer given while being lenient towards ladies.

Given the status of the parties and the fact that it is a petition filed by the wife seeking transfer of the husband’s case from Mangaluru, Karnataka to Mumbai, Maharashtra, we believe no case is made out for transfer of the petition from Mangaluru, Karnataka to Mumbai, Maharashtra.  The wife is a Canadian permanent resident. She must travel abroad frequently.

She can travel to Mangaluru to attend the case hearing and can also request an exemption from the appearance when necessary. Despite this, we do not believe that there is a basis for ordering the respondent to reimburse the petitioner’s travel expenses to Mangaluru based on the financial circumstances of the parties as they currently stand. However, if she wishes to seek compensation for expenses, she may do so by applying with the appropriate court, which will be considered on its own merits. 

We do not believe this is a suitable case for exercising power under Article 142 of the Indian Constitution, despite the parties’ good faith. The judgments relied on by the respondent’s learned counsel are distinguishable, as in those cases, there was adequate evidence on file, and the cause on which the marriage was dissolved in the exercise of power under Article 142 of the Indian Constitution was an irretrievable breakdown of marriage, which is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955.

We do not believe the current petition has substance for the reasons stated above.  As a result, the same is dismissed.

READ FULL JUDGEMENT: https://bit.ly/3Ak0sR6

–Report by Arun Bhattacharya

The honourable Supreme Court of India in HAJI ABDUL GANI KHAN & ANR. V UNION OF INDIA & ORS. on Monday 13th of January, 2023 observed that “A Constitutional Court cannot casually interfere with legislation made by a competent Legislature” while dismissing the writ petition filed under Article 32 of the Constitution of India.

FACTS

The legality of the action of forming a Delimitation Commission for the rearrangement of constituencies in the Union territories of Jammu & Kashmir and Ladakh was challenged.
On 5th of August, 2019 a Presidential Order was issued under the powers provided in clause (1) of Article 370 of the Indian Constitution with the objective of application of the Constitution along with its amendments in the state of Jammu & Kashmir. Application of all provisions of Article 370 was discontinued by a subsequent Presidential declaration.

PETITIONER’S CONTENTION

The petitioners’ primary objection was to the increased number of Assembly seats and the subsequent challenge was that the constitution of the Delimitation Commission was in complete violation of the order passed by the Election Commission of India in 2008 (Delimitation of Parliamentary and Assembly Constituencies Order,2008). The petitioners mainly relied on Article 170 of the Indian Constitution which restrained any rearrangement of assembly seats before the first census after the year 2026. Certain other violations by Articles 330,332, 82 and 83 have also contended which may be read in the original judgment but the essential focus was on the violation of the jurisdiction of the Election Commission of India due to the noncompliance with the order of 2008. Further, sections 59 to 63 were also challenged on the ground of contradiction.

RESPONDENT’S CONTENTION

The Union of India represented by the learned Solicitor General highlighted the delay since the delimitation order had already been passed and the said order of the Delimitation Commission was operative from 20th March 2022 and that such an order by a Delimitation commission stands beyond the purview of court’s review jurisdiction according to Section 10 (2). The validity of sections 60 and 62 was highlighted because the Election Commission had already notified the Government of India of the non-necessity of its interference with the rearrangement of constituencies since the same had already been directed to the Delimitation Commission by a letter proving the sections’ non-contradictory nature.

COURT’S CONSIDERATION

The honourable Supreme Court observed a lack of specificity of allegations and since the grounds on which the said Act’s constitutionality may be verified is not mentioned, it fell short of gaining an in-depth reply from the respondent as well as it did not provide the honourable court with enough room for a constitutionality check. The honourable court denied the validity check of the J&K Reorganisation Act and the Presidential Order of 2019 since they were not at all challenged by the petitioners. The Supreme Court observed the legislative action of constituting the Delimitation Commission in compliance with Articles 3, 4 and 239A and pointed out that the argument on Article 170 does not stand since it dealt with the Legislature of a State and not a Union territory. Applying similar legal analogies the sections 60 and 62 of the J&K Reorganisation Act, the apex court completely refuted the question of legality raised about the exercise of delimitation conducted by the Delimitation Commission.
On the question of the legality of the Order of 6th March 2020 the apex court weighed on the fact that statutory interpretation must be by the legislative intent and that a practical approach must be adopted to “make it workable”.

JUDGMENT

Considering all other legal points and dogmas the apex court stated that the petition lacked merits and that it was a ‘vague attempt’ to portray the exercise of delimitation as an illegal affair. Pointing out the non-bearing of this judgment’s observations on other matters which are subject to judicial scrutiny, the court intentionally refrained from weighing on the validity of the exercise of Parliamentary powers and dismissed this petition.

READ FULL JUDGEMENT: https://bit.ly/3Kd0twu